THE REALTY COMPANY, APPELLANT,
v.
FRALEIGH-SMITH INVESTMENT COMPANY, APPELLEE
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The Florida Supreme Court reversed an order overruling a demurrer to a bill seeking to enforce a mortgage lien because the circuit judge who signed the order lacked judicial authority to preside over the case without evidence of proper executive assignment to the circuit where the case was pending.
The order overruling the demurrer was void because Judge Simmons lacked judicial authority to preside over the case. Without an executive order on record in Madison County authorizing his assignment to the Third Judicial Circuit, and without evidence that the assigned judge was unable to act, no valid judicial action could be taken by Judge Simmons.
“There is nothing in the record to show that by executive order the Honorable Daniel A. Simmons was acting as Judge of the Third Judicial Circuit for Madison or Hamilton County on the 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.”
Establishes the critical requirement that judicial assignment to another circuit must be shown in the record
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Join FLexlaw to unlock all legal intelligenceThe Fraleigh-Smith Investment Company filed a bill in the Circuit Court for Madison County against the Realty Company to enforce a mortgage lien. A de…
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Ellis, J.
This is a suit to' enforce a mortgage lien in favor of the Fraleigh-Smith Investment Company which exhibited its bill in the Circuit Court for Madison County against the mortgagor, the Realty Company, for that purpose. There was a demurrer to the bill. Later an amended bill was filed and a demurrer interposed to that. The demurrer was overruled and an appeal was taken from that order. The order was signed by Honorable Daniel A. Simmons at Jasper, Florida, July 30, 1924, in open court.
This Court takes judicial notice that Honorable Mallory F. Horne ivas Judge of the Third Judicial Circuit of Florida on that date and that such Circuit included the counties of Madison and Hamilton in which latter county the city of Jasper is located. The Court also takes judicial notice that Honorable Daniel A. Simmons ivas Judge of the Circuit Court of Duval County on that date.
There is nothing in the record to show that by executive order the Honorable Daniel A. Simmons was acting as Judge of the Third Judicial Circuit for Madison or Hamilton County on the 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 order the same should have been entered of record in Madison County where this cause was pending, and should have been made to appear by the record in this case.
The record contains a statement that no such executive assignment or order is on record in the office of the Clerk of the Circuit Court for Madison County. If there was such an executive order on record in Hamilton County we cannot presume that Judge Horne was unable to act in Madison County where the cause was pending, or that the parties by consent agreed to submit the demurrer to Judge Simmons at Jasper in Hamilton County on account of such inability of Judge Horne to act.
Other assignments of error are considered to be without merit. The matter of the amount actually due upon the promissory note, regardless of the amount alleged to be due in the bill, will be determined by the evidence submitted before the special master or examiner, to take testimony. The bill with the exhibits, which are by appropriate language made part of it, is sufficiently definite as to the place at which the note was payable.
For the reason assigned the order overruling the demurrer is void and the cause is hereby remanded for appropriate proceedings.
Whitfield, Terrell, Strum and Brown, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Forcum v. Symmes, 133 So. 88 (Fla. 1931)…rm of the Circuit Court for Dade County at which the order appealed from was rendered. On application of appellant, this has been made a part of the record, which we consider meets the requirements announced in Realty Co. v. Fraleigh-Smith Inv. Co., 90 Fla. 769, 107 So. 174. It appearing that this court has acquired appellate jurisdiction of the cause, the same shall retain its present place upon the docket of the court, and will be considered upon its merits when reached in due course. It is so ordered.…
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Johns v. State, 144 Fla. 256 (Fla. 1940)…urts to require the order of assignment to be recorded in the minutes of the court, as is usually done in' cases of this sort, by way of analogy to the holding of the court in' the case of an assigned circuit judge (Realty Co. v. Fraleigh Smith Co., 90 Fla. 769, 107 So. 764), but the statute does not require it. Furthermore, this certified copy of the executive order shows that it was signed by the Governor and attested by the Secretary of State under the seal of the State, and this raises a presumption th…
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Lottie v. Stearns, 106 Fla. 440 (Fla. 1932)…ding in a Court over which he had no jurisdiction to act except under special circumstances. The final decree appealed from being void, the appeal should be dismissed and the cause remanded for further proceedings. See Realty Co. vs. Fraleigh-Smith, 90 Fla. 769, 107 Sou. Rep. 174; Dodd Lumber & Timber Co. vs. Krusen L. & T. Co., 105 Fla. 196, 141 Sou. Rep. 117. Appeal dismissed and cause remanded to Court of Record of Escambia County for further proceedings. Whitfield, P.J., and Terrell, J., concur. Buf…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sewell v. Huffstetler, 83 Fla. 629 (Fla. 1922)
- Keen v. Polk, 72 Fla. 106 (Fla. 1916)