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Welch v. State

Florida Supreme Court

March 1, 1923

WELCH, County Judge
v.
STATE ex rel. JOHNSON.

Error to Circuit Court, Jackson County; C. L. Wilson, Judge.

Action by the State, on the relation of Rosetta Johnson, against E. C. Welch, as County Judge of Jackson County. From an order granting a peremptory writ of mandamus commanding defendant to reinstate on the docket of his court and try an action of forcible entry and unlawful detainer which had been dismissed, defendant brings error.

Reversed.

Syllabus by the Court

SYLLABUS

Plaintiff must have clear legal right to performance of particular duty which cannot be secured by other remedy. The writ of mandamus does not supersede legal remedies, but rather supplies the want of a legal remedy; therefore two prerequisites must exist to warrant a court in granting this extraordinary remedy: First, it must appear that the relator has a clear, legal right to the performance of the particular duty by the respondent; and, second, that the law affords no other adequate or specific remedy to secure the performance of the duty which it is sought to coerce.

Rests in sound judicial discretion of court. At common law the issuance of a writ of mandamus is not a matter of course; being in its nature a prerogative writ, its issuance is to a certain extent a matter of judicial discretion, and even in this country, where the prerogative character of the writ is no longer fully recognized, the exercise of the jurisdiction to grant it rests, to a considerable extent, in the sound discretion of the court, subject always to the well-settled principles which have been established by the courts.

Will not lie where remedy by appeal or writ of error. Mandamus can only be resorted to where there is no other adequate remedy to accomplish the purpose sought thereby; and where a remedy by appeal or writ of error exists, and such remedy is competent to afford full and ample relief, mandamus will not lie.

Where title and boundaries are or reasonably may be involved in controversy, county judge should dismiss without prejudice. The circuit court has exclusive original jurisdiction of 'all actions involving the titles or boundaries of real estate,' and also has 'original jurisdiction of actions of forcible entry and unlawful detainer'; and where it appears, in an action of forcible entry and unlawful detainer brought in the county judge's court, that questions of title and boundaries are or reasonably may be involved in the controversy, it is appropriate that the county judge should dismiss the action without prejudice.

Will not lie to compel county judge to try action where real issue is question of title. A peremptory writ of mandamus should not be issued to compel a county judge to try an action of forcible entry and unlawful detainer, when the county judge had a substantial basis for holding and did hold that 'the real issue in the case is a question of title.'

Writ of error available where action or forcible entry and unlawful detainer dismissed in county judge's court. Under Rev. Gen. St. 1920, ยง 3474, providing for a writ of error to the proper appellate court in cases of forcible entry and unlawful detainer, such remedy is available where such an action is dismissed in the county judge's court.

COUNSEL

Page 751

[85 Fla. 265] Paul Carter, of Marianna, for plaintiff in ...


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