State ex rel. Raulerson v. Durrance

91 So. 331, 83 Fla. 375

• Court: Supreme Court of Florida
• Decided: March 15, 1922
• Status: Published

Opinion

Whitfield, J.

This writ of error was taken to a judgment for the defendant in mandamus proceedings brought to require the Clerk of the Circuit Court to issue a writ of possession to enforce a judgment for the plaintiffs in an action of ejectment.

. A judgment in ejectment obtained against the heirs of the owner of a homestead was reversed. Raulerson v. Peeples, 77 Fla. 207, 81 South. Rep. 271. Subsequently a judgment for the plaintiff heirs was rendered and an order restraining execution process was reversed. Raulerson v. Peeples, 81 Fla. 206, 87 South. Rep. 629.

Before the judgment for the plaintiffs in ejectment, the defendant had put improvements upon the property.

. The clerk having refused to issue a writ of possession pursuant to the judgment for the plaintiff heirs of the homesteader, an alternative writ of mandamus was issued, which writ was dismissed upon a return of the defendant clerk that in betterment proceedings tmder the statute concerning improvements put upon the property, a judgment had been rendered, and pursuant to the statute the plaintiff heirs had elected to take the adjudged value of the lands. It does not appear that the rights of the heirs to the land had been extinguished by consent, satisfaction or otherwise. '

‘‘ "Quité independent of' and without reference to the betterment proceedings, and in the absence of a restraining judicial order or direction, it is upon demand the duty of the clerk to issue an appropriate writ of possession predicated-upon the judgment for the plaintiffs in ejectment, and that duty may be enforced by mandamus.' No opinion is expressed as to. the legality or propriety of the betterment proceedings as they may affect the homestead property.

Reversed for appropriate proceedings pursuant to this opinion..

Browne, C. J., and Taylor and Ellis, J. J., concur. West, J., concurs in conclusion.