McNally v. State , 117 Fla. 33 ( 1934 )

Where the law of the case is settled on a former review and a judgment is thereafter rendered by the trial court purporting to follow the judgment and mandate of the Supreme Court, and a second writ of error is sued out to review the judgment of the Circuit Court entered by it in its effort to conform with the Supreme Court's mandate will, upon consideration of defendant in error's motion to quash the proceedings in error made under Sections 4639 C. G. L., 2930 R. G. S., 4965 C. G. L., 3173 R. G. S., affirm the judgment where, upon a consideration of the motions to quash, it has been necessary to make an examination of the transcript of the record and it appears therefrom that the second judgment as last appealed from conforms to the Supreme Court's mandate. City of South Miami v. DuBois Const. Co., 115 Fla. 619, 155 Sou. Rep. 795.

In this case practically all of the alleged errors now attempted to be assigned and argued were deemed to have been raised too late on the first writ of error, and this Court expressly so held in its former opinion reversing the previous judgment. See McNally v. State ex rel. Bond Realization Corp.,112 Fla. 434, 150 Sou. Rep. 751.

Upon remand of the case after its previous review, the plaintiff below, with leave of court, elected to amend the alternative writ of mandamus by eliminating from the original writ as framed the duplicitous command heretofore held objectionable on that ground, and a peremptory writ of mandamus in accordance with the amended alternative writ as so revised was ordered to be issued. This was done in conformity to the previous opinion and mandate of this Court, so the resultant judgment now brought here on a second writ of error was not eroneously entered, and must be affirmed on authority of City of South Miami v. Du Boise Const. Co., supra.

Affirmed on motion to quash proceedings in error.

DAVIS, C. J., and ELLIS, TERRELL and BUFORD, J. J., concur.