STATE, EX REL. MERIDEN CREAMERY,
v.
F. M. ROBLES, JUDGE
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The Florida Supreme Court denied a petition for mandamus seeking to compel a circuit court judge to vacate orders dismissing a writ of error and reinstate it for joint consideration with another judge as required by statute. The Court held that a single judge had jurisdiction to dismiss the writ of error, and mandamus is not an appropriate remedy to challenge such dismissal even if error occurred.
Mandamus is not an appropriate remedy to compel a circuit judge to vacate orders dismissing a writ of error, even if the dismissal orders were entered by only one judge in violation of statutory requirements. A single circuit court judge had jurisdiction to dismiss the writ of error on appropriate grounds, and the Civil Court of Record's abolishment and transfer of cases to circuit court provides an adequate alternative remedy.
“It was competent for one of the circuit court judges in Hillsborough County to dismiss a writ of error taken from such court to the Civil Court of Record; and as the dismissal was upon grounds that are appropriate for dismissal of a writ of error in the circuit court, the orders of dismissal were within the jurisdiction and province of the circuit judge, and even if error was committed in the dismissal, mandamus cannot be used to compel the circuit judge to vacate the orders of dismissal and to reinstate the writ of error.”
Establishes the core holding that mandamus is an inappropriate remedy to challenge dismissal orders even if error occurred
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Join FLexlaw to unlock all legal intelligenceOn March 29, 1930, a writ of error was taken from an order granting a new trial in the Civil Court of Record for Hillsborough County. The circuit cour…
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An alternative. writ of mandamus issued by this Court alleges in effect that on March 29th, 1930, a writ of error was taken to an order granting a new trial in a law action in the Civil Court of Record for Hills-borough County, returnable June 2nd, 1930, to the circuit court for said county; that on June 11th, 1930, two motions were made to dismiss the writ of error, one motion on the ground that the written directions to the clerk for the preparation of the transcript of the record on the writ of error did not specify a date when the clerk should begin the preparation of the transcript as required by the rule and the other motion on the ground that the plaintiff below who was the plaintiff "in error had not paid all costs in the action as required by law as a prerequisite to the issuance of the writ of error; that the writ of error was dismissed December 18th, 1931, by only one of- the Judges of the Circuit Court for Hillsborough County; that on October 29th, 1932, a *277motion to vacate such dismissal of the writ of 'error was made; that said motion was on November 3, 1932, denied by only one of the Circuit Judges of Hillsborough County; that Chapter 15666, Acts of 1931, then in force, required such writs of error tb be considered, heard and determined by both of the judges of the circuit court; that the orders dismissing the writ of error are nullities. The command of the alternative writ is that the circuit judge do “enter an order vacating said orders of dismissal, and reinstating said writ of error, and to consider, hear • and determine said cause, upon said writ of error, jointly with the Honorable L. L. Parks of said circuit court, as required by law, upon its merits; or that you show cause why you have not done so,” etc.
The respondent circuit judge made defensive response to the command of the alternative writ.
Relators moved for a peremptory writ.
After the writ of error from the Circuit Court to the Civil Court of Record had been dismissed by the circuit judge, Chapter 14663, Acts of 1931, became operative providing that “the Civil Court of Record in and for Hills-borough County, Florida, be and the same is hereby abolished and all cases pending in said Court on the date of its abolishment shall be transferred by the Clerk, of said Court to the Circuit Court of said County and there be docketed by the Clerk of the said Circuit Court and said .cases shall be tried and disposed' of in said Circuit Court.” This Act became effective December 31st, 1931.
It was competent for one of the circuit court judges in Hillsborough County to dismiss a writ of error taken from such court to the Civil Court of Record; and a's the dismissal was upon grounds that are appropriate for dismissal of a writ of error in the circuit court, the orders of dismissal were within the jurisdiction and province of the circuit *278judge, and even if error was committed in the dismissal, mandamus cannot be used to compel the circuit judge to vacate the orders of dismissal and to reinstate the writ of error. Apparent laches are not considered. The Civil Court of Record having been abolished and the cases pending. in such court having been transferred to the circuit court, the case in which the new trial was granted in the Civil Court of Record is now a case pending in the. circuit court for appropriate proceedings.
Peremptory writ denied.
Ellis, Terrell, Brown and Buford, J. J., concur.
Davis, C. J., concurs specially.
(concurring). — -The return of the circuit judge to the alternative writ in this case shows that the writ of error from the judgment of the Civil Court of Record was sued out to the Circuit Court of Hillsborough County, prior to June 22nd, 1931, the date on which Chapter 15666, Acts of 1931, took effect.
Under our decision in State ex rel. Rifas v. Atkinson, 102 Fla. 1028, 137 Sou. Rep. 266, Chapter 15666, Acts of 1931, does not apply to any writ of error sued out before Chapter 15666, supra, took effect. Therefore the peremptory writ of mandamus should be denied as attempting to coerce the circuit judge to proceed under a statute having no application to the particular writ of error dismissed by an order signed by only one circuit judge.
Davis, C. J.
(concurring). — -The return of the circuit judge to the alternative writ in this case shows that the writ of error from the judgment of the Civil Court of Record was sued out to the Circuit Court of Hillsborough County, prior to June 22nd, 1931, the date on which Chapter 15666, Acts of 1931, took effect.
Under our decision in State ex rel. Rifas v. Atkinson, 102 Fla. 1028, 137 Sou. Rep. 266, Chapter 15666, Acts of 1931, does not apply to any writ of error sued out before Chapter 15666, supra, took effect. Therefore the peremptory writ of mandamus should be denied as attempting to coerce the circuit judge to proceed under a statute having no application to the particular writ of error dismissed by an order signed by only one circuit judge.
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State v. Rose, 123 Fla. 544 (Fla. 1936)…the officer of that duty and no adequate method of redress other than mandamus must exist. See also in this connection, State v. Blanton, 112 Fla. 303, 150 So. 263; State, ex rel. Hillman, v. Hutchins, in 118 Fla. 220, 158 So. 716; State v. Robles, 111 Fla. 276, 150 So. 247; State v. Duncan, 116 Fla. 193, 150 So. 587. Where relator’s right to mandamus appears doubtful under the pleadings, motion to quash must be granted. State, ex rel. Barton, v. State Racing Commission, 116 Fla. 795, 156 So. 910. In State…
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Berry v. The Honorable C. Archie Clement, 346 So. 2d 105 (Fla. 2d DCA 1977)…mandamus was not the proper remedy here. If the error committed by a court is one made in the course of the exercise of legitimate jurisdiction, then mandamus will not lie to compel correction of the error. State ex rel. Meriden Creamery v. Robles, 111 Fla. 276, 150 So. 247 (1933). [*107] The petition for writ of mandamus, having been filed within thirty days of the county court’s dismissal of appellants’ pleadings, however, the discretionary writ of common law certiorari would have been viable, assuming n…
Authorities Cited
- State v. Atkinson, 102 Fla. 1028 (Fla. 1931)