State ex rel. Davis v. Baggett

Browne, C. J. The matter of reinstating a case which has been dismissed for failure of plaintiff in error or appellant to file his brief within the time required by the Rules of this court, is addressed to the sound discretion of the court, and in the exercise of such discretion it will be influenced to some extent by the nature of the case and the remedy sought by -the appeal. The record discloses that on the 13th of June, 1916, a petition was presented to the County Commissioners of Okaloosa County praying that an election be called to determine the location of the county site, and that after two postponements, the County Commissioners, by a vote of three to two, on August 2nd, 1916, called an election for this purpose, to be held March 6th, 1917. On August 21st, 1916, W. J. Davis and B. P. Edge, the two commissioners who voted in the negative, filed a petition for mandamus to require the Board of County Commissioners of Okaloosa County “to assemble at ten o’clock A. M. on the 24th day of August, A. D. 1916, at the Court House at Milligan, Okaloosa County, Florida, and then and there, with your petitioners W. J. Davis and B. P. Edge, jointly acting as the said Board of County Commissioners of Okaloosa County, Florida, rescind their former action, whereby said Board called the election to change the county seat of said county, to be held March 6th. 1917, and then and there call said election and set the date when it shall be held to be Tuesday, October 10th, A. D. 1916, or such other date as to this court shall seem reasonable, and then and there to appoint inspectors,” etc. The sole purpose of the petition as disclosed in the prayer was to have the election called for an earlier date than March 6th, 1917. The court below denied the application for a peremp [38] tory writ of mandamus, and the complainants took writ of error. The transcript of the record was filed in this court on September 30th, 1916, and the brief of counsel for plaintiffs in error was due to be filed on November 2nd, 1916. On November 14th, on application of counsel for plaintiffs in error, he was given until November 26th to file his brief. On December 19th, the case was dismissed on motion of defendants in error for the failure of counsel for plaintiffs in error to file his brief. On December 22nd, 1916, plaintiffs in error moved to have the cause reinstated, but owing to delays caused by acts of omission on his part, the matter was not heard until January 16th, 1917. If the cause should be x'einstated, the attorney for defendants in error would have until Februrary 5th in which to file his brief, and 'before the case can be heard and determined the election will have been held. It is apparent from the foregoing that it is impossible for plaintiffs in error to obtain the relief they seek, to-wit: to have the election called for a date earlier than March 6th, 1917, and there is, therefore, nothing to be gained by reinstating the cause, and the application of counsel for plaintiffs in error is therefore denied. Taylor, Shackleford, Whitfield and Ellis, JJ., concur.