STATE, EX REL. EMORY A. JOHNSON,
v.
W. R. ROBERTS, AS COUNTY JUDGE OF CHARLOTTE COUNTY, AND LILLY V. KING, AS SUPERVISOR OF REGISTRATION OF CHARLOTTE COUNTY
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The Florida Supreme Court addressed a petition for a writ concerning election returns. The Court found the initial petition sufficient but acknowledged that the respondent's answer raised factual issues that, if true, would prevent the requested relief, necessitating further evidence collection.
Yes, the factual allegations in the respondent's answer raise material issues that require the taking of testimony and evidence to resolve before a peremptory writ can be issued.
“In this case the allegations of the petition and alternative writ are sufficient to make out a prima facie case. Therefore the motion to quash is overruled.”
Establishes the initial sufficiency of the relator's petition.
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Join FLexlaw to unlock all legal intelligenceThe relator filed a petition and alternative writ, establishing a prima facie case. The respondent's answer alleged that the relator's residence and t…
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In this case the allegations of the petition and alternative writ are sufficient to make out a prima facie case. Therefore the motion to quash is overruled.
The answer or return makes certain allegations as to the residence of the relator and as to the overlapping of election precinct lines with the commissioner’s district lines, which, if true, would make an accurate recanvass of the primary election returns impossible, in so far as to the votes cast within the- particular Commissioner’s district in question, and hence would preclude the issuance of a peremptory writ in this case. Issue has been taken upon the allegations of fact contained in the answer. To determine this issue, testimony, and perhaps documentary evidence, would have to be submitted by the parties.
The- court therefore appoints Honorable George W. Whitehurst, Judge of the Twelfth Judicial Circuit, as Commissioner to take such evidence and testimony as the parties may see fit to submit on the issues of fact thus raised, at such time and place .as said Judge may fix and determine, the same to be reduced to writing and returned to this Court for its consideration.
It is so ordered.
Whitfield, Terrell, Brown and Chapman, J. J., concur.
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Radford v. Brock, 914 So. 2d 1066 (Fla. 2d DCA 2005)…Inc., 541 So. 2d 1252, 1256 (Fla. 2d DCA 1989). If the petition and answer to the alternative writ raise disputed factual issues, the trial court must resolve these issues upon evidence submitted by the parties. See State ex rel. Johnson v. Roberts, 134 Fla. 326, 184 So. 14, 14 (1938); City of Bradenton v. State ex rel. Perry, 118 Fla. 838, 160 So. 506, 507-08 (1935). If undisputed affidavits are submitted to the trial court, the court may be able to resolve the issues based on those affidavits. See Mendyk…
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BAL Harbour Vill. v. State of Fla. ex rel. V. E. Giblin, 299 So. 2d 611 (Fla. 3d DCA 1974)…true then of course the trial judge erred in issuing the peremptory writ without a trial of the issues of fact raised. See City of Bradenton v. State ex rel. Perry, 118 Fla. 838, 160 So. 506, 100 A.L.R. 400, (1935); State ex rel. Johnson v. Roberts, 134 Fla. 326, 184 So. 14 (1938). The issues of fact suggested by appellants are: (1) the rights and duties of the Village with reference to appellee’s compliance with the South Florida Building Code, and (2) whether the revised plans and specifications submitte…
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Peddy v. Pac. Emp'rs Ins. Co., 246 F.2d 306 (5th Cir. 1957)…e of the Hilton-Green case was approved and followed by the Supreme Court of Florida in Parsons v. Federal Realty Corporation, 105 Fla. 105, 143 So. 912, 88 A.L.R. 275. And see Hallowes v. New York Life Ins. Co., 133 Fla. 872, 184 So. 7, 184 So. 12, 184 So. 14. The most recent of the Florida cases, and we think, the nearest to the instant case of any of the decided cases, is Centennial Insurance Co. v. Parnell, decided in 1955, by the Supreme Court of Florida, and reported at 83 So. 2d 688. In this case t…