State Ex Rel. Drane v. Robles ( 1932 )

The Court affirmed the judgment ordering a peremptory writ. Mandate was issued requiring it to be enforced. After the mandate was lodged in the Court below the Circuit Judge ordered the peremptory writ to be amended and a portion of it quashed. The relator applied here for a writ of mandamus against the Circuit Judge to require him to comply with the mandate as issued. Respondent Judge made return, setting up that in his opinion the execution of the peremptory writ would be futile and asking permission to quash a portion of the same.

A majority of the Court are of the opinion that the motion to recall the mandate should not be granted because a recall of the mandate without a reversal of the judgment of affirmance heretofore entered by this Court, would be useless and futile. See Brown vs. State, 29 Fla. 494. The denial of the motion to recall the mandate necessarily results in a granting of a motion for a peremptory writ to the Circuit Judge to require compliance with the mandate.

BUFORD, C.J., AND WHITFIELD, TERRELL AND DAVIS, J.J., concur.

BROWN, J., dissents.