WALTER MCNALLY, AS MAYOR, ETC., ET AL.,
v.
STATE, EX REL. BOND REALIZATION CORP.
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This Florida Supreme Court case affirms a trial court judgment that was entered in compliance with the Court's prior mandate. The Court holds that where a trial court properly follows the Supreme Court's prior directive on remand, a second appeal will be affirmed and proceedings in error may be quashed.
The judgment is affirmed. Where a trial court's subsequent judgment conforms to the Supreme Court's mandate from a prior review, that judgment must be affirmed on a second writ of error, and proceedings in error may be quashed.
“Where the law of the case is settled on a former review and a judgment is thereafter rendered by the trial court purporting to follow the judgment and mandate of the Supreme Court, and a second writ of error is sued out to review the judgment of the Circuit Court entered by it in its effort to conform with the Supreme Court's' mandate will... affirm the judgment where... it appears' therefrom that the second judgment as last appealed from conforms to the Supreme Court's mandate.”
Establishes the core rule that a trial court judgment conforming to a Supreme Court mandate will be affirmed on second appeal.
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Join FLexlaw to unlock all legal intelligenceThe case involves a mandamus proceeding between the City of South Miami (through Mayor McNally) and the State ex rel. Bond Realization Corp. After the…
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Where the law of the case is settled on a former review and a judgment is thereafter rendered by the trial court purporting to follow the judgment and mandate of the Supreme Court, and a second writ of error is sued out to review the judgment of the Circuit Court entered by it in its effort to conform with the Supreme Court’s' mandate will, upon consideration of defendant in error’s motion to quash the proceedings in error made under Sections 4639 C. G. L., 2930 R. G. S., 4965 C. G. L., 3173 R. G. S., affirm the judgment where, upon a consideration of the motions to quash, it has been necessary to make an examination of the transcript of the record and it appears' therefrom that the second judgment as last appealed from conforms to the Supreme Court’s mandate. City of South *34Miami v. DuBois Const. Co., 115 Fla. 619, 155 Sou. Rep. 795.
In this case practically all of the alleged errors now attempted to be assigned and argued were deemed to have been raised too late on the first writ of error, and this Court expressly so held in its former opinion reversing the previous judgment. See McNally v. State ex rel. Bond Realization Corp., 112 Fla. 434, 150 Sou. Rep. 751.
Upon remand of the case after its previous review, the plaintiff below, with leave of court, elected to amend the alternative writ of mandamus by eliminating from the original writ as framed the duplicitous command heretofore held objectionable on that ground, and a peremptory writ of mandamus in accordance with the amended alternative writ as so revised was ordered to be issued. This was done in conformity to the previous opinion and mandate of this Court, so the resultant judgment now brought here on a second writ of error was not eroneously entered, and must be affirmed on authority of City of South Miami v. Du Boise Const. Co., supra.
Affirmed on motion to quash proceedings in error.
Davis, C. J., and Ellis, Terrell and Buford, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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City of Bradenton v. State, 118 Fla. 838 (Fla. 1935)…of the alternative writ (which is the plaintiff’s declaration and the foundation for the relief he has succeeded in having awarded) and for further proceedings not inconsistent with this opinion. See McNally v. State, ex rel. Bond Realization Corp., 117 Fla. 33, 157 Sou. Rep. 403 (second appeal). In the foregoing opinion the Court has been at some pains to outline the proper course of procedure in mandamus cases such as the one now before the Court, because of the large number of appeals in mandamus cases…
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City of Bradenton v. State, 117 Fla. 578 (Fla. 1934)…lternative writ amended to conform to the peremptory writ now outstanding. Such is precisely what happened in the McNally case, supra, which, on its second appearance in this Court, was affirmed. See McNally v. State, ex rel. Bond Realization Corp., 117 Fla. 33, 157 Sou. Rep. 430. A municipal creditor is generally acknowledged the legal right to have unincumbered' surpluses in the; municipality’s treasury after current expenses for the fiscal yea.r are paid, applied to the satisfaction of any matured gene…
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Treat v. State, 118 Fla. 899 (Fla. 1935)…, 733, 143 Sou. Rep. 644; Little River Bank & Trust Co. v. Johnson, 105 Fla. 212, 141 Sou. Rep. 141; McNally v. State, ex rel. Bond Realization Corp., 112 Fla. 434, 150 Sou. Rep. 751; McNally v. State, ex rel. Bond Realization Corp. (second appeal), 117 Fla. 33, 157 Sou. Rep. 430; State, ex rel. Taliaferro v. Baskin, 113 Fla. 115, 151 Sou. Rep. 421; State, ex rel. Gillespie v. Carlton, 103 Fla. 810, 138 Sou. Rep. 612; State, ex rel. Montgomery v. City of Ft. Pierce, 106 Fla. 845, 143 Sou. Rep. 733; State,…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McNally v. State ex rel. Bond Realization Corp., 112 Fla. 434 (Fla. 1933)
- Nicoletta v. Cruz, 112 Fla. 434 (Fla. 1933)
- Dobkin v. Am. Auto. Ins. Assn., 115 Fla. 619 (Fla. 1934)