CITY OF MANATEE, ET AL.,
v.
STATE, EX REL. BLANCHE M. WALSH
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The Florida Supreme Court reversed a mandamus judgment because the peremptory writ was amended to apply to the 1937 tax roll without a corresponding amendment to the alternative writ, violating the elementary rule that the peremptory writ must follow the alternative writ. The Court allowed relators to amend both writs to apply to the current 1938 tax roll instead.
The amended peremptory writ was erroneously issued because it did not follow the alternative writ in its commands. The Court reversed the judgment without prejudice, allowing relators to amend both the alternative writ and peremptory writ to apply to the current 1938 tax roll instead.
“It is the elementary and universal rule in mandamus that the peremptory writ must follow the alternative writ.”
Establishes the fundamental procedural principle violated by the amended peremptory writ
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Join FLexlaw to unlock all legal intelligenceFollowing a prior Supreme Court decision on December 5, 1936, the City of Manatee sought to apply for an order spreading a levy over multiple years, w…
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The law of this case was determined in our opinion and judgment rendered on its disposition pursuant to a former appeal. See City of Manatee, et al, v. State, ex rel. Walsh, 126 Fla. 425, 171 Sou. 228. That opinion and judgment was filed here on December 5, 1936. On December 18, 1936, Plaintiff in error filed petition here praying leave to present to the Circuit Court application for an order spreading the involved levy over a period of years. The petition was denied.
It appears from the record before us that there was no effort made to amend the alternative writ of mandamus. It is the elementary and universal rule in mandamus that the peremptory writ must follow the alternative writ.
On December 29, 1937, more than one year after our .judgment, supra, was''entered, and after the tax rolls for 1937 had been turned over to the Tax Collector and a large part of the taxes levied and assessed on said rolls, relator filed her petition for leave to amend the peremptory writ only so as to make it apply to the 1937‘ tax roll and on the same day order was entered amending the peremptory writ so as to make it apply to the 1937 tax roll.
The amended peremptory writ did not follow the alternative writ in its commands and was, therefore, erroneously issued. But, had the alternative writ been amended, as' was the peremptory writ, the identical condition would have obtained as to the applicability of the writs to the 1937 tax roll which had obtained as to the applicability of the original writs to the 1936 tax roll when we rendered our judgment here on December 5, 1936.
So the judgment should be and is reversed without prejudice to amend the alternative writ and the peremptory writ so as to make the same applicable to the current 1938 tax roll.
*228So ordered.
Ellis, C. J., and Terrell, J., concur.
Whitfield, P. J., and Brown and Chapman, J. J., concur in the opinion and judgment..
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Moore v. Hendry, 126 Fla. 411 (Fla. 1936)
- City of Manatee v. State, 126 Fla. 425 (Fla. 1936)