BERTHA KEEN, APPELLANT,
v.
W. R. POLK AND JOHN THORNTON, APPELLEES
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Bertha Keen appealed a decree dismissing her bill in equity. The Florida Supreme Court reversed because the trial judge lacked proper authority to hear the case and the cause was not at issue when the hearing was held.
The court held that the decree was erroneous for two reasons: (1) the absence of the circuit judge must be established by sworn affidavit rather than unverified counsel certification, and (2) the case was not at issue because no replication had been filed and the time for taking testimony had not begun, so defendants had no right to set it down for hearing.
“where the judge of one circuit acts in a cause pending in another circuit because of the absence of the judge of such other circuit, the fact of such absence should be made to appear at least by the sworn affidavit of some person who knows of such absence, and not simply by the bare unverified certificate of counsel in the cause”
Establishes the procedural requirement that judicial absence must be proven by sworn affidavit, not counsel certification
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Join FLexlaw to unlock all legal intelligenceKeen filed a bill in equity against W. R. Polk and John Thornton. The defendants filed pleas and answered the bill, but Keen never filed a replication…
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Per Curiam.
—To the bill filed in this cause the defendants below interposed pleas and also answered the bill. Without any disposition of the plea, and without any replication being filed to the answer, the defendants’ attorney gave only three days’ notice to the complainant’s attorney that he would apply to the judge of an adjoining circuit, because of the absence from his circuit of the judge presiding where the cause was pending, for a final hearing of the cause on the bill, answer and pleas. The counsel for the defendants in order to secure this hearing before the judge of such adjoining circuit, simply certified that the judge of the circuit where the cause was pending was absent from the State, without solemnizing such certificate with his own or the oath of any one else. The judge of such adjoining circuit on this showing heard the cause and rendered a final decree dismissing the complainant’s bill.
This was erroneous: (1) Because where the judge of one circuit acts in a cause pending in another circuit because of the absence of the judge of such other circuit, the fact of such absence should be made to appear at least by the sworn affidavit of some person who knows of such absence, and not simply by the bare unverified certificate of counsel in the cause. (2) It was erroneous further because the cause was not at issue, no replication to the answer having been filed, and the time for the taking of testimony had not begun to run, and under the rule in such case the defendants had no right to set the cause down for hearing on bill and answer. Gary v. Mickler, 21 Fla. 539.
The decree appealed from is, therefore', hereby reversed at the cost of the appellees.
Taylor, C. J. and Shackleford, Cockrell, Whitfield and Ellis, JJ. concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Sewell v. Huffstetler, 83 Fla. 629 (Fla. 1922)…oes not negative such an idea and the [*638] statute referred to rests upon it, because it provides that such duties may be discharged by the judge to whom application is made either in his own or any other jurisdiction. In the case of Keen v. Polk, 72 Fla. 106, 72 South. Rep. 788, it is held that evidence of the inability to act or absence of the judge in whose circuit the cause is pending should be given to the judge to whom application is made by affidavit. The declaration does not allege that any such…
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Reffkin v. Mayo, 115 Fla. 214 (Fla. 1934)…81 R. G. S. 1920). In the proceedings in habeas, corpus before Judge Stringer, acting pro hac vice for Judge Adkins of the Twenty-sixth Circuit, the necessary affidavit was made as to the absence from Union County of Judge Adkins. See Keen v. Polk, 72 Fla. 106, 72 South. Rep. 788. The consideration of the petition by Judge Stringer under the provisions of the statute mentioned did not operate as a change of venue. See City of Jacksonville v. Dorman, 13 Fla. 390; State v. Hocker, 35 Fla. 19, 16 South. Rep…
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The Realty Co. v. Fraleigh-Smith Inv. Co., 90 Fla. 769 (Fla. 1925)…e date the order was signed, nor that Honorable Mallory F. Horne because of illness, absence from the Circuit, or other cause was unable to act. See Article Y, Section 8, Constitution; Sections 2681-3057-3061, Revised General Statutes; Keen v. Polk, 72 Fla. 106, 72 South. Rep. 788; Sewell v. Huffstetler, 83 Fla. 629, 93 South. Rep. 162. The demurrer was filed July 3, 1924; the order overruling it was made July 30, 1924. If Judge Simmons was holding court in the Third Circuit at Jasper upon an executive o…
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- Gary v. Mickler, 21 Fla. 539 (Fla. 1885)