STATE EX REL. DANIEL L. GINSBERG, PETITIONER,
v.
MARSHALL C. WISEHEART, AS JUDGE OF THE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR DADE COUNTY, RESPONDENT
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The Florida Third District Court of Appeal considered a petition for a writ of prohibition, determining whether a chancellor was proceeding without jurisdiction after erroneously denying a motion to disqualify him. The court found that the suggestion for prohibition stated a prima facie case.
Yes, the suggestion for a writ of prohibition stated a prima facie case. The court found that the allegations and supporting documents showed the chancellor was proceeding without jurisdiction after erroneously denying the disqualification motion.
“In this circumstance the only question is whether or not the suggestion for the writ of prohibition stated a prima facie case.”
Establishes the standard of review for the appellate court when no return is filed.
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Join FLexlaw to unlock all legal intelligenceA motion to disqualify a chancellor in an equity suit was made and denied. The petitioner sought a writ of prohibition, arguing the chancellor was pro…
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A rule nisi in prohibition was issued on April 28, 1960, by this court, directed to the respondent. No return was made to the rule nisi by the respondent. In this circumstance the only question is whether or not the suggestion for the writ of prohibition stated a prima facie case. See Cobb v. State ex rel. Pitchford, 148 Fla. 149, 3 So.2d 855, 856.
The basis for prohibition as submitted by the suggestion is the contention that the chancellor in an equity suit is proceeding without jurisdiction because a motion to disqualify him was made and erroneously denied.
Notwithstanding such inference as may be drawn from the failure of the respondent to make return to the rule nisi, this court has carefully considered the allegations of the suggestion and the documents in support thereof and holds that the suggestion makes a prima facie showing.
The only order the judge ordinarily may make in such situation is one for his disqualification. See § 38.02, Fla.Stat., F.S.A. However, in order that this case may be progressed, the chancellor involved, being the presiding judge of the court, properly may order transfer of the cause to another judge of that court. Kells v. Davidson, 102 Fla. 684, 136 So. 450.
Accordingly, judgment in prohibition is awarded, but we assume it will not be necessary to issue the writ.
HORTON, C. J., and PEARSON and CARROLL, CHAS., JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State of Fla. ex rel. LA Vigne Elec. Co. v. Floyd, 131 So. 2d 208 (Fla. 3d DCA 1961)…in prohibition was issued in each of these cases. No return has been made by the respondent. We have therefore considered the allegations of the suggestion and the documents in support thereof. See State ex rel. Ginsberg v. Wiseheart, Fla.App.1960, 120 So. 2d 810. We hold that the suggestion makes a prima facie case. A trial judge may not grant a petition for rehearing addressed to a summary final judgment. Cf. Marans v. Stang, Fla.App.1960, 124 So. 2d 891. Accordingly, judgment in prohibition is awarded,…
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State v. Honorable Paul Baker, 226 So. 2d 21 (Fla. 3d DCA 1969)…eturn. In this circumstance the only question is whether the suggestion for the writ of prohibition stated a prima facie case. See Cobb v. State ex rel. Pitchford, 148 Fla. 149, 3 So. 2d 855 (1941); State ex rel. Ginsberg v. Wiseheart, Fla.App.1960, 120 So. 2d 810. The basis for prohibition as submitted by the suggestion is the contention that there is no criminal case pending before the respondent which would vest him with jurisdiction to enter such an order, and that therefore the purpose of the order does…
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State of Fla. ex rel. v. Honorable Paul Baker, 243 So. 2d 464 (Fla. 3d DCA 1971)…nisi absolute and granting the writ of prohibition was proper, based on our determination that the suggestion stated a prima facie case. Cobb v. State ex rel. Pitchford, 148 Fla. 149, 3 So. 2d 855; State ex rel. Ginsberg v. Wiseheart, Fla.App.1960, 120 So. 2d 810; State ex rel. Gillham v. Phillips, Fla.App.1966, 193 So. 2d 26, 27; State ex rel. Oldham v. Baker, Fla.App.1969, 226 So. 2d 21, 22. However, the respondent filed a brief, and the matter was considered on the merits, on the briefs with the benefit o…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Nelson v. Lord, 102 Fla. 684 (Fla. 1931)
- Frank W. Kells and wife Rosa C. Kells v. Davidson, 102 Fla. 684 (Fla. 1931)
- Hon. Otis M. Cobb v. State, 148 Fla. 149 (Fla. 1941)