L. H. MYERS, AS SECRETARY OF ENDOWMENT BUREAU OF DISTRICT GRAND LODGE NO, 27 UNITED ORDER OF ODD FELLOWS OF FLORIDA, PLAINTIFF IN ERROR,
v.
STATE OF FLORIDA, EX REL. G. F. THOMPSON, AS PERMANENT SECRETARY OF OMEGA LODGE NO. 5442, GRAND UNITED ORDER OF ODD FELLOWS OF FLORIDA, DEFENDANT IN ERROR
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The Florida Supreme Court reversed the issuance of a peremptory writ of mandamus requiring an Odd Fellows lodge secretary to issue a receipt for dues paid under a disputed assessment schedule. The court held that mandamus was an inappropriate remedy because the relator's legal right was unclear and collateral questions of fact and law required adjudication through other proceedings.
A peremptory writ of mandamus should not have been issued because the relator's legal right did not clearly appear on the face of the pleadings and the questions involved were collateral questions requiring adjudication through other appropriate proceedings, not through mandamus.
“two prerequisites must exist to warrant a court in granting this extraordinary remedy: first, it must appear that the relator has a clear, legal right to the performance of the particular duty by the respondent; and, second, that the law affords no other adequate or specific remedy to secure the performance of the duty which it is sought to coerce.”
Establishes the two essential requirements for issuance of mandamus
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Join FLexlaw to unlock all legal intelligenceThe secretary of Omega Lodge No. 5442 of the Grand United Order of Odd Fellows was ordered by mandamus to issue a receipt for dues payments made accor…
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Whitfield, J.
A peremptory writ of mandamus was issued herein commanding the secretary of a lodge of Odd Fellows to issue a receipt for dues, etc., upon payments made under a schedule of assessment dues without reference to increases that had been made in such dues, the authority for which increase was contested. A writ of error was taken.
The writ of mandamus does not supersede legal remedies, but rather supplies the want of a legal remedy, therefore two prerequisites must' exist to warrant a court in granting this extraordinary remedy: first, it must appear that the relator has a clear, legal right to the performance of the particular duty by the respondent; and, second, that the law affords no other adequate or specific remedy to secure the performance of the duty which it is sought to coerce. State ex rel. Ellis v. Atlantic Coast Line R. Co., 53 Fla. 650, 44 South. Rep. 213.
Mandamus is not the proper method of trying collateral questions which require a legal controversy for their settlement. Cawthon v. State ex rel. Adams, 62 Fla. 133, 56 South. Rep. 404; State ex rel. Sunday v. Richards, 50 Fla. 284, 39 South. Rep. 152.
“At common law the issuance of a writ of mandamus is not a matter of course; being in its nature a prerogative writ, its issuance is to a certain extent a matter of judicial discretion, and even in this country where the prerogative character of the writ is no longer fully recognized, the exercise of the jurisdiction to grant it rests, to a considerable extent, in the sound discretion of the court, subject always to the well settled principles which have been established by the courts. 18 R. C. L. §52, p. 137; 26 Cyc. 143, 157.
In this case the rights of the relator, if any, in the premises, depend upon a determination of rather' unusual questions of fact to which rules of law hitherto unascertained in this State are supposed to apply. As a legal right of the relator to the writ does not clearly appear on the face of the pleadings on which the writ was ordered, and as questions involved should be adjudicated in other appropriate proceedings, the peremptory writ of mandamus should not have been issued, but the alternative writ should have been dismissed.
Reversed.
Browne, C. J., and Taylor, Ellis and West, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (20 total)
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State of Fla. ex rel. John Nuveen v. Greer, 88 Fla. 249 (Fla. 1924)…ight to the performance of the particular duty by the respondent; and, second, that the law affords no other adequate or specific remedy to secure the performance of the duty which it is sought to coerce. Myers v. State ex rel. Thompson, 81 Fla. 32, 87 South. Rep. 80. See also State ex rel. Ellis v. Atlantic Coast Line R. Co., 53 Fla. 650, 44 South. Rep. 213, 13 L. R. A. (N.S.) 320; 12 Ann. Cas. 359. The bonds in this case issued by the municipality were expressly and specifically authorized by statute. The [*2…
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State v. DeWitt T. Gray, 92 Fla. 1123 (Fla. 1927)…btful right, but it must appear, amongst other things, as a prerequisite to the issuance of the writ, that the relator has a clear, legal right to the performance by the respondent of the particular duty in question. Myers v. State ex rel. Thompson, 81 Fla. 32; 87 Sou. Rep. 80; State ex rel. Ellis v. Atlantic Coast Line R. R. Co., 53 Fla. 650; 44 Sou. Rep. 213; 13 L. R. A. (N. S.) 320; 12 Ann. Cas. 359; State v. Geer, 88 Fla. 249; 102 Sou. Rep. 739; 37 A. L. R. 1298. The method of serving process authori…
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State v. Carey, 121 Fla. 515 (Fla. 1935)…mandamus will not be granted when there is another adequate remedy, are the following cases: State v. Call, 41 Fla. 450, 26 So. 1016; State v. Richards, 50 Fla. 284, 39 So. 152; State v. Haskell, 72 Fla. 176, 72 Sou. 651; Myers v. State, 81 Fla. 32, 87 So. 80. From the allegations of the alternative writ of mandamus in the instant case, the relator, if the respondents have unlawfully imposed a tax on his homestead for debt service upon bonds, instead of levying upon non-exempt property a millage suffici…1 / 3
Previewing 3 of 20 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The State of Fla. ex rel. W. H. Ellis v. Atl. Coast Line R.R. Co., 53 Fla. 650 (Fla. 1907)
- State v. Richards, 50 Fla. 284 (Fla. 1905)
- Cawthon v. State, 62 Fla. 133 (Fla. 1911)