State Ex Rel. Desoto County v. Sholtz

160 So. 865, 119 Fla. 101, 1935 Fla. LEXIS 937

• Court: Supreme Court of Florida
• Decided: April 18, 1935
• Status: Published

Opinion

Per Curiam.

Following the proceeding heretofore had herein as recited and set forth in the opinion of this Court filed herein on November 14, 1934 (State, ex rel. DeSoto County, v. Sholtz, 117 Fla. 258, 157 Sou. Rep. 645), the alternative writ of mandamus was' amended to meet the opinion of the Court heretofore rendered.

The return of the respondents as amended unequivocally denies the truth of the new facts alleged in the amendment to the alternative writ, and since the amendment to the alternative writ was by the previous decision of this Court made essential to the maintenance of this proceeding, the denial by the respondents of the facts going to make up the basis for the amendment, necessarily makes out a good defense unless the facts set up by relator are substantiated by proofs sufficient to overcome such denials as the return contains.

The demurrer to the return and motion to quash same are overruled, with leave to relator to take issue on same and proceed to proofs in due course of procedure, as in such cases made and provided. For the purpose of taking proofs in the event that issue be joined, this cause is hereby referred to the Hon. J. B. Johnson, one of the Circuit Judges of the Circuit Court of the Second Judicial Circuit of Florida, to act as the Special Commissioner of this Court to take and report to this Court the testimony herein, if any such be tendered, the time for taking testimony to be limited to sixty days from date hereof unless further time be given.

Order to be entered in conformity to this opinion.

Whitfield, C. J., and Ellis, Terrell, Brown, Buford, and Davis, J. J., concur.