STATE OF FLORIDA, EX REL., ROY BOOTH, PLAINTIFF IN ERROR,
v.
JAMES F. SIKES, ET AL., DEFENDANTS IN ERROR
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The Florida Supreme Court reversed a lower court's decision to sustain a demurrer and grant a motion to strike, which had resulted in the dismissal of a writ of mandamus. The court found that the motion to strike was an improper procedural tool and that the case should be decided on its merits.
No, the lower court erred in sustaining the demurrer and granting the motion to strike. The motion to strike was an improper procedural method to challenge the petition or the writ.
“The motion to strike was not a proper method of assault either upon the petition for the- alternative writ nor upon the alternative writ and, therefore, should not have been considered by the Court.”
Establishes the court's reasoning regarding the improper use of a motion to strike.
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Join FLexlaw to unlock all legal intelligenceAn alternative writ of mandamus was issued by a Circuit Court judge. The defendants filed a motion to strike the petition and what was termed a demurr…
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Per Curiam.
Alternative writ of mandamus was issued on the 14th day of December, 1928, by the Honorable O. L. Dayton, Judge of the Circuit' Court in and for Pinellas County. What was termed a demurrer to the petition for alternative writ was filed and appears to have been considered by tbe Court as demurrer to the alternative writ of mandamus. Motion to strike the petition was filed. On final hearing the demurrer was sustained and the motion to strike was granted.
The motion to strike was not a proper method of assault either upon the petition for the-alternative writ nor upon the alternative writ and, therefore, should not have been considered by the Court. 'This, however, has no material effect in this case because upon the order being made sustaining the demurrer the alternative writ of mandamus was dismissed.
Writ of error was taken from the judgment of the court sustaining the demurrer and dismissing the alternative writ. The judgment complained of should be reversed upon authority of the opinion in the case of Vincent Nuccio, Jr. v. W. T. Williams et al., filed February 13, 1929, and it is so ordered.
Reversed.
Terrell, C. J., and Wi-iiteield, Ellis, Strum, Brown and Buford, J. J., concur.