Hays v. State, Ex Rel. , 133 Fla. 800 ( 1938 )

This writ of error is addressed to a judgment awarding the issuance of a peremptory writ of mandamus. This judgment was rendered in response to a motion made by the relator for the granting of the peremptory writ notwithstanding the answer or return. The judgment of the court below must be affirmed upon the authority of Canova v. State, 18 Fla. 572; Board of Commissioners v. Johnson Co., 21 Fla. 578; State v. Seaboard Air Line R. Co.,92 Fla. 1139, 111 So. 735; Ray v. Wilson, 29 Fla. 342, 10 So. 613; State, ex rel. Burr, v. Seaboard etc., R. Co., 92 Fla. 61,109 So. 656.

"A return to an alternative writ of mandamus should, for the purpose of making an issue, set up a positive denial of the fact stated, or should state other facts sufficient to defeat relator's writ. A mere answer that a sum stated is not the correct amount is not sufficiently specific." Such was the holding in the Canova case, supra. The chancellor evidently followed this rule in granting the peremptory writ. The facts of the two cases are somewhat different but the principle underlying the Canova case appears to be applicable in this case.

The Court does not deem it necessary or appropriate to express any views upon the question or questions involved in the equity case pending in the Circuit Court for DeSoto County, out of which this mandamus proceeding arose.

Affirmed.

ELLIS, C.J., and WHITFIELD, BROWN, BUFORD and CHAPMAN, J.J., concur.

ON PETITION FOR REHEARING.