State ex rel. Jewett v. Robles , 75 Fla. 790 ( 1918 )

Taylor, J.

This original cause in this court came on to be heard upon demurrer of the respondent to the petition and suggestion for the writ of prohibition against the respondent Judge, to- prohibit him as such judge from proceeding further in a so-called separate action carved out of an original action at law in the Circuit Court of Hillsborough County against the relators as executrices of Florence, E. Inman, deceased. By the allegations of the petition and suggestion for the writ of prohibition, that are admitted to be true by the demurrer, it appears that one Louis Brill, as plaintiff, instituted his original joint action at law in assumpsit in the Circuit Court of Hillsborough County upon a joint promissory note against Eugene Holtsinger, Florence E. Inman (then living) and Swann & Holtsinger' Company, et al.; that after she had appeared in said suit the defendant therein, Florence E. Inman, departed this life testate appointing the relators herein as the executrices of her will. That thereupon at the suggestion and on the motion of the plaintiff in said suit the respondent Judge made an order in said canse to the effect that the said cause be separated and should continue as tAVO separate actions, the one against the surviving defendants and the other 'against the relators herein as executrices of the deceased defendant Florence E. Inman, and required the said relators, as said executrices, to appear and show cause why said action should not be separated and proceeded in against them as such executrices and why they should hot appear and plead to the original declaration filed in said separated cause. The respondent Judge subsequently made this rule abso: lute and required the relators as such executrices to appear and plead to the original declaration, as the declaration in such separate suit against them. The demurrer to the suggestion for the writ of Prohibition presents the question of the jurisdiction and power of the Circuit Judge to make the orders complained of.

The orders complained of is virtually a revivor of a joint action at law against three joint defendants against tbe executors: of one of such defendants deceased. This proceeding is not warranted by our statutes and the Circuit Judge had no jurisdiction or power to enter them, and he is hereby prohibited from proceeding further in such separate action against said relators herein and from making any other orders or judgments therein.

The demurrer to the petition and suggestion is overruled and the peremptory writ of Prohibition is hereby ordered as herein provided, at the cost of the State of Florida.

Browne, C. J., and Whitfield,. Ellis and West, J. J., concur.