HOWARD JOHNSON, INC., OF FLORIDA, PETITIONER,
v.
STATE ROAD DEPARTMENT OF FLORIDA, AN AGENCY OF THE STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court denied a petition for certiorari, affirming the lower court's decision that the defendant failed to establish an issue regarding the necessity of a taking in a condemnation proceeding.
No, the defendant's answer failed to allege sufficient facts to create an issue regarding the necessity of the taking.
“Although replete with conclusions that there is no necessity for the taking, the answer fails to allege sufficient facts to create an issue upon that subject.”
This quote explains the court's reasoning for finding that the defendant did not properly raise an issue of necessity.
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Join FLexlaw to unlock all legal intelligenceHoward Johnson, Inc. was the defendant in a condemnation proceeding. In its answer, the company attempted to raise an issue concerning the necessity o…
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PER CURIAM.
This is a condemnation proceeding wherein the petitioner herein was defendant in the circuit court. In its answer Howard Johnson, Inc., attempted to create an issue on the necessity for taking. At the threshold we are impelled to observe that this is a type of common law action in which in all probability we would grant “special dispensation” and entertain the petition for certiorari if the answer or those portions of it which were stricken were sufficient to establish such an issue.
We agree, however, with the able circuit judge that the attempt to make such an issue was abortive. Although replete with conclusions that there is no necessity for the taking, the answer fails to allege sufficient facts to create an issue upon that subject. Consequently we must, and do hereby, deny the petition for certiorari.
Certiorari denied.
DREW, C. J., and HOBSON, THOR-NAL and O’CONNELL, JJ., concur.
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Bd. OF Comm'rs OF State Insts. v. Tallahassee Bank & Tr. Co. cum testamento annexo, 108 So. 2d 74 (Fla. 1st DCA 1958)…s been that the petitioner, who is now appellant, was asking us to interrupt the orderly processes of a condemnation suit by reviewing mere interlocutory steps in the trial procedure. Howard Johnson, Inc., of Fla. v. State Road Department, Fla.1956, 90 So. 2d 306. We have declined to do this but have consistently reserved for future determination any grievance which the appellant might have had as a result of the alleged irregularity in the trial proceedings. That time has now arrived. We are faced squarely…
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Rolf Peter Salinger v. Salinger, 100 So. 2d 393 (Fla. 1958)…e entered, that is, recorded, in the Chancery Order Book. See Magnant v. Peacock, 156 Fla. 688, 24 So. 2d 314, 315, and the cases there cited; Barry v. Robson, Fla.1953, 65 So. 2d 739, 740.” And, in the later case of Brenner v. Gelernter, Fla.1956, 90 So. 2d 306, 307, we held that: “The effective date for final orders, judgments, or decrees used in comput [*394] ing the time for taking appeals to the Supreme Court is ‘the rendition of the final order, judgment or decree appealed from’. 31 F.S.A. Rule 12(2)…
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Marvell Womack v. Burton F. Goldberg and Joyce S. Goldberg, 117 So. 2d 758 (Fla. 3d DCA 1960)…en (15) days from the date hereof,” and, as no amendment to the complaint was filed, the rendition date of the final order and the start of the running of the 60-day period for appeal therefrom was September 16, 1959. Brenner v. Gelernter, Fla.1956, 90 So. 2d 306. The appellants, being uncertain of the finality of that common-law order, applied to the court and obtained a second order, which, dated October 20, 1959, was as follows: “This Cause coming on to be heard upon the defendants’ motion to dismiss th…
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