State Ex Rel. Trustee Realty Co. v. Atkinson

An alternative writ of mandamus issued by this Court alleges that in an application for process in a chancery cause an affidavit states that the residence or residences of the defendants "are unknown to the complainant and to affiant," the respondent Circuit Judge "refused to make" an order for the publication of notice for defendants to appear in the cause. The writ commanded the Circuit Judge "to enter the aforesaid order of publication" or show cause etc. A motion to quash contains grounds that the affidavit does not comply with the statute and is insufficient in that affiant fails to state whether said defendants are residents *Page 1033 of a state or county other than the State of Florida, nor does affiant state in said affidavit that said defendants are residents of the State of Florida." Not waiving the motion to quash the respondent avers that the order for publication of notice would have been made had the affidavit complied with the requirements of Sec. 4895 Comp. Gen. Laws 1927, Sec. 3111 Rev. Gen. Stats. 1920. The legal sufficiency of an affidavit made in an application from an order for the publication of notice to the defendant to appear in a chancery suit, which affidavit states "that the places of residence of" the defendants "are unknown," without other averments as to the residence of the defendants, is considered and determined in the opinion of the Court prepared by MR. JUSTICE STRUM in the case of Artin Balian et al. v. The Wekiwa Ranch, filed May 29, 1929. See also Blake v. Zittrouer, 1 Fed. R. 2d 496; Broward Estates v. Hon. C. E. Chillingworth, et al., 93 Fla. 366, 112 So. R. 64. The alternative writ should be quashed because the discretionary writ of mandamus is not the proper remedy, where, as here, the act commanded to be done concerns not a ministerial act of issuing process involving no discretion, but the act involves to a certain extent judicial discretion of a Circuit Judge, see McDaniel v. McElvy, 108 So. R. 820, 91 Fla. 770, and the relator has a remedy by appeal from the interlocutory order in chancery denying an application for an order for publication of notice to appear in a cause, when the action of the Judge complained of is not a refusal to entertain or to exercise jurisdiction but a denial of the order asked for after jurisdiction has been exercised by considering the application on its merits and refusing to make the order. See State v. Helen S. Burbridge, 41 Fla. 450, 26 So. R. 1016; State v. Wolfe, 58 Fla. 523, 50 So. R. 511; Welch v. State ex rel. Johnson, *Page 1034 85 Fla. 264, 95 So. R. 751; State ex rel. v. Chillingworth, Judge, filed this term. Tibbetts v. Olson, 91 Fla. 824, 108 So. R. 679, an appeal from an order denying an order of publication. In Broward Estates Corporation v. Chillingworth, Judge,93 Fla. 366, 112 So. R. 64, a writ of mandamus was denied, though the action of the Circuit Judge in refusing an order for the publication of notice to defendants to appear in a chancery cause, was considered and approved. State ex rel. Matheson v. King, 32 Fla. 416, 13 So. R. 891. The alternative writ should be quashed as not being the proper remedy as appears on a consideration of the entire record. TERRELL, C. J., AND BROWN, J., concur. ELLIS AND BUFORD, J. J., concur in the conclusion.