Peebles v. Smith , 291 So. 2d 102 ( 1974 )

291 So. 2d 102 (1974)

Douglas V. PEEBLES, Relator,
v.
The Honorable D.R. SMITH, As Circuit Judge of the Fifth Judicial Circuit, IN AND FOR MARION COUNTY, Florida, Respondent.

No. V-142.

District Court of Appeal of Florida, First District.

March 12, 1974.

Merritt H. Powell, Daytona Beach, for relator.

Robert L. Shevin, Atty. Gen., George R. Georgieff, Asst. Atty. Gen., for respondent.

PER CURIAM.

The relator, Douglas V. Peebles, has filed a suggestion for writ of prohibition whereby he seeks the issuance of a writ of prohibition restraining the respondent from exercising further jurisdiction in the underlying mortgage foreclosure action on ground of the respondent's alleged disqualification.

The suggestion fails to make out a prima facie case showing that the respondent is disqualified as a matter of law. See State ex rel. Bryan v. Albritton, 114 Fla. 725, 154 So. 830. It affirmatively appears that the relator has not followed the statutory procedure for disqualification, which is prescribed in Chapter 38, Florida Statutes, F.S.A.

One of the grounds for disqualification asserted by relator appears to come within the purview of Section 38.02, Florida Statutes, F.S.A., and the other ground under Section 38.10, Florida Statutes, F.S.A. In both instances, the statute requires that a suggestion of disqualification must be filed together with certain supporting data in the trial court. The judge then must enter an order thereon, and if the suggestion of disqualification is denied, such order of denial is appealable. On the mere suggestion made ore tenus before the judge in this case and his verbal order denying same, it does not clearly appear that statutory disqualification existed as a matter of law. Without such a showing, prohibition will not lie.

Accordingly, the suggestion for writ of prohibition is denied.

SPECTOR, Acting C.J., and BOYER and McCORD, JJ., concur.