State Ex Rel. Pearson v. Trammell

169 So. 45, 124 Fla. 543

Opinions

Per Curiam.

The facts of this controversy have been stated in the opinion of Mr. Justice Brown. We agree with his conclusion, but not with that feature of the opinion which holds the remedy by writ of prohibition improper in a case of this kind. Too many decisions of this Court, notably Speight v. Horne, 101 Fla. 101, 133 Sou. Rep. 274 (9th headnote) establish the rule to the contrary. Furthermore, as pointed out in the last cited case, writ of error would not be an adequate remedy, because it would require the defendants, in seeking a writ or error, to enter a general appearance in the cause, whereas their object is to have the Court cease trying to exercise jurisdiction over their persons on a service or appearance plainly inadequate to support the Court’s right to proceed against the objecting defendants.

In this case we concur in the conclusion that the rule nisi should not be made an absolute prohibition, because the motion filed by Attorney Morehead to be permitted to withdraw his entry of appearance for the defendants, Alura Blair Pearson and her husband, is not self-supporting as against the Circuit Judge’s ruling refusing to grant the motion, hence a bill of exceptions should have been taken before the respondent Judge showing what, if any, proof, was offered to prove the lack of authority of the attorney to appear, the authority of an attorney to appear being presumed prima facie and requiring contradictory proof to overturn it if not admitted to have been entered without authority. See: Bishop v. Chillingworth, 114 Fla. 286, 154 Sou. Rep. 254.

Prohibition being the converse of mandamus in jurisdictional matters (State, ex rel. Garrett, v. Johnson, 112 Fla. 112, 150 Sou. Rep. 239), a bill of exceptions showing the facts should be made up and filed as a part of the record upon which a prohibition is sought. This is so, because the court below, if prohibited, should be prohibited ordinarily upon what appears on the face of the record as a foundation for the prohibition absolute applied for.

Rule nisi discharged and writ of prohibition denied.

Whitfield, , C. J., and Ellis, Terrell, Buford and Davis, J. J., concur. Brown, J., dissents in part and concurs in judgment.