State Ex Rel. Palmer v. Atkinson , 116 Fla. 366 ( 1934 )

The respondent, H. F. Atkinson, is one of the duly elected, qualified and acting Circuit Judges of the Eleventh Judicial Circuit of Florida, embracing Dade County. There are three other judges in that circuit who have powers and jurisdiction equal and equivalent to that of the respondent as a Circuit Judge of the Eleventh Judicial Circuit.

The object of the present proceeding in mandamus is to coerce the respondent as one of the Circuit Judges of the Eleventh Circuit, to proceed with hearings concerning, and to rule upon, a motion for appointment of a receiver in the case of Julia M. Palmer and T. W. Palmer as complainants, against divers defendants, including The First National Bank of Miami, a national banking corporation, pending before Judge Atkinson. Respondent has declined to act in the case.

The reasons given by Judge Atkinson for his refusal to make rulings in the case presented to and pending before him in the chancery cause referred to, are best presented by quoting from the alternative writ of mandamus that portion thereof dealing with the reasons of Judge Atkinson for refusing to act. The reasons, which Judge Atkinson by his return filed thereto, confesses to be true, are as follows:

"After full argument of counsel representing the respective parties, the Honorable H. F. Atkinson, Judge of the Circuit Court of the Eleventh Judicial Circuit, in and for Dade County, Florida, as aforesaid, to whom said cause had been submitted, thereupon announced that before ruling upon said motion for the appointment of a receiver and upon said motion to dismiss the bill of complaint he wished to make a statement, and thereupon, stated that in the latter part of the year 1929 or the early part of 1930, one A. J. Rose, Esq., who at that time was the attorney for the First National Bank of Miami, had advised the Honorable H. F. Atkinson, who at that time, as now, was duly appointed and acting Circuit Judge of the Eleventh Judicial Circuit, in and for Dade County, Florida, that the Board of Directors of the First National Bank of Miami, Florida, objected to the Honorable H. F. Atkinson passing upon any matters in any cause in which the said First National Bank of Miami, Florida, appeared as a party therein, and that rather than disqualify him in any cause in which the First National Bank of Miami, Florida, was interested as a party litigant they requested him not to render any orders in any such causes, and in pursuance of said statement of the said A. J. Rose, Esq., the Honorable H. F. Atkinson stated that he had agreed not to act in any cause in which the First National Bank of Miami; Florida, was an interested party and had given his word to such effect, and that in view of the fact that the First National Bank of Miami, Florida, was resisting the appointment of a receiver in said cause he would not rule therein unless the First National Bank of Miami, Florida, would release him from his agreement. In reply to such statement, Sidney Quick, Esq., solicitor for the First National Bank of Miami, Florida, stated that he was not advised of any such agreement; that the Bank had not informed him of any such agreement, and that he could not speak for the Bank at that time, but that he would ascertain the will of the Bank in reference to said agreement and would advise the Court thereof.

"Thereafter, on Tuesday, July 17th, 1934, the First National Bank of Miami, Florida, by and through its solicitor, Sidney Quick, Esq., of the law firm of Shutts Bowen, advised the Honorable H, F. Atkinson, Circuit Judge, that the Bank would not release the Judge from his agreement And insisted that he should refuse to act in said cause.

"The complainant in said cause, Julia M. Palmer, joined by her husband, T. W. Palmer, by a letter of her attorney, insisted that the Court rule in said cause unless the First National Bank of Miami, Florida, disqualify the Honorable H. F. Atkinson as Judge as provided by the rules of Court and the statutes of this State in such cases made and provided.

"Thereafter, the Honorable H. F. Atkinson, Judge of the Circuit Court of the Eleventh Judicial Circuit, as aforesaid, notified the solicitor for the complainant that he would not rule in said cause upon the application for the appointment of receiver predicated upon the sworn bill of complaint filed therein as aforesaid or the motion to dismiss the Bill of Complaint as aforesaid, because the First National Bank of Miami, Florida, refused to release him from his said agreement, and thereafter the said Judge returned the file in said cause to the office of the Clerk of the Circuit Court of the Eleventh Judicial Circuit, in and for Dade County Florida, without ruling in said cause and still refuses for the reasons herein stated to rule in said cause or to further assume jurisdiction therein or perform the duties of his office as required by law."

It cannot be denied that Judge Atkinson has jurisdiction to rule in the case referred to. Nor does it appear that any of the causes assigned by him for refusing to act in the premises amount to a showing that said Judge is either disqualified or legally incompetent to rule in the pending case by making a judicial decision of the controversy presented to, him.

It is the duty of a Circuit Judge who is eligible and competent to sit in a cause, to exercise his judicial functions therein and to make all necessary orders and decrees pertaining thereto, regardless of his personal embarrassment, or his feelings of delicacy or other considerations, where same do not amount to a legal disqualification to sit and render judgment in the cause.

And mandamus will lie to compel a qualified judge to proceed with the determination of any cause properly brought before him, wherein no legal impediment to his judicially acting in such cause is made to appear in preclusion of judicial action. Trustees Internal Imp. Fund v. Bailey, 10 Fla. 213; Towle v. State, 3 Fla. 202; State v. King, 32 Fla. 416, 13 Sou. Rep. 891; Anderson v. Brown, 6 Fla. 299; State v. Young, 31 Fla. 594, 12 Sou. Rep. 673, 19 L. R. A 636, 34 Am. St. Rep. 41; State v. Wolfe, 63 Fla. 290, 58 Sou. Rep. 841.

But it is of no concern, to a judge to preside in any particular case, nor is it any proper concern of any of the parties to the cause to have him so preside, where no serious detriment to the administration of justice, nor any inconvenience worthy of mention will ensue to the litigants from the declination of the particular judge to act in the particular case. See Berger v. United States, 255 U.S. 22 (text p. 35), 41 Sup. Ct. Rep. 230, 65 L.Ed. 481.

By his return to the alternative writ in the controversy now before us, the respondent Circuit Judge admits that he has refused to make rulings in the case pending before him and that he so refuses, not because he is legally disqualified, but because of the facts and circumstances heretofore adverted to in our quotation from the confessed allegations of the alternative writ. But respondent Judge likewise sets up in his return that he "has offered to sign an order transferring said cause to either of the three Circuit Judges of the Circuit Court of the Eleventh Judicial Circuit of Florida, that may be willing to hear and determine the same."

This Court judicially knows that there are three other judges of the Circuit Court of equal jurisdiction to Judge Atkinson, and that if said other Circuit Judges are not disqualified in the pending cause, that a transfer of the cause in controversy to them by Judge Atkinson would be legal procedure. Pope v. State, 84 Fla. 428, 94 Sou. Rep. 865.

While no legal cause is shown by Judge Atkinson for his refusal to rule in the pending case, which is the occasion for relator's seeking the relief asked for in this proceeding, the fact remains that there are three other Circuit Judges in Dade County, who are not shown to be disqualified to act in this particular matter, and to whom Judge Atkinson has expressed his willingness to transfer the cause for hearing and determination.

Furthermore, Judge Atkinson is senior in commission to the other Circuit Judges of the Eleventh Judicial Circuit — a fact of which we take judicial notice from the date appearing in the forepages of our official reports. Therefore, as the Circuit Judge of the Eleventh Judicial Circuit "holding the commission earliest in date" of any of the other Judges of the same Circuit, Judge Atkinson is entitled under Section 43 of Article V of the Constitution, as amended in 1922, to allot and assign any pending matters and cases to be heard by the other Circuit Judges of Dade County, regardless of the legal soundness of the reasons given by Judge Atkinson for his refusal to act in relator's case now pending before him in the Circuit Court of Dade County.

So there is no real necessity for the award of a mandamus against Judge Atkinson as prayed, merely because he is about to do that which he is entitled to do under the terms of the Constitution itself in the course of making an allotment and assignment of cases to be "heard, decided, ordered, tried, decreed or adjudged" by the Circuit Court of Dade County.

If the present case were pending in a Circuit Court wherein there was only one qualified resident Circuit Judge, mandamus would have to issue, because the grounds asserted for the refusal of the judge to act are not sufficient in law to legally disqualify him in the premises. But where it clearly appears that notwithstanding the refusal of one qualified Circuit Judge to act in a cause pending in a Circuit Court having more than one duly qualified, and acting resident Judge, there are other Circuit Judges of the same Circuit present and available, to whom the controversy can be presented for decision, mandamus to compel judicial action by a particular judge may, and should be, denied, on the ground that no real necessity for the issuance of a peremptory writ is made to appear.

The writ of mandamus supplies the want of a legal remedy for the situation complained of by the relator. It is applicable where the law affords no adequate or specific remedy to secure the performance of the duty it is sought to coerce. Leatherman v. Schwab, 98 Fla. 885, 124 Sou. Rep. 459.

No litigant is entitled to more than the cold neutrality of an impartial judge of his cause. So where it appears from the admissions in the pleadings that a relator in mandamus, seeking to coerce a particular Circuit Judge to hear and determine his case, has other Circuit Judges as conveniently at hand and equally qualified and able to act in his cause if applied to, as would be the respondent Circuit Judge if a peremptory writ should issue against him, a peremptory writ of mandamus to coerce action by the particular respondent judge will be denied, especially where it is not made to appear that the relator will be deprived of any substantial legal right, nor caused to suffer any particular inconvenience, should his case be transferred by authority of law to another available and qualified Circuit Judge resident of the same Circuit, sitting in the same county.

Peremptory writ of mandamus denied and proceeding dismissed.

WHITFIELD, BROWN and BUFORD, J. J., concur.

ON PETITION FOR REHEARING.