State, Ex Rel. Neafie v. Butler

On petition for rehearing it is contended that the order restraining the enforcement of the peremptory writ of mandamus so as to prevent fraud, deceit, artifice and trickery was in accord wtih the previous rulings of this Court and within the exception referred to in State ex rel. Davis v. Atlantic Coast Line R. Co., 103 Fla. 1204, 140 So. 817, 824; State ex rel. Durrance v. City of Homestead, 125 Fla. 105, 169 So. 593, and Pomeroy's Equity Jurisprudence, Vol. 4 (5th Ed.) par. 1361, p. 975. The answer to this contention is that the peremptory writ of mandamus is not a brutum fulmen, subject to collateral attack and not within the rule enunciated in Kroier v. Kroier,95 Fla. 865, 116 So. 753, and Watkins v. Johnson, 139 Fla. 712,191 So. 2.

The Circuit Court of Broward County had jurisdiction of the subject matter and the parties when entering the peremptory writ of mandamus. It was the legal duty of the respondents in the mandamus proceedings to obey the commands of the peremptory writ and file therein a certificate showing, in part, a detailed performance of the commands of the peremptory writ. See State ex rel. Havana State Bank v. Rhodes, 124 Fla. 288, 168 So. 249; State ex rel. Durrance v. City of Homestead, 125 Fla. 105, 169 So. 593. The issue of fact viz.: "the amount due and the ownership of the interest coupons" was before the Court and placed at rest by the terms of the peremptory writ. It has not been made to appear that the court issuing the writ did not have jurisdiction of the subject matter and the parties.

We reiterate that the defense offered in the lower court for the discharge of the rule to show cause is legally insufficient. We have not had presented on this record a showing by the respondents legally sufficient to bring them within the exception of the rule enunciated in State ex rel. Durrance v. City of Homestead, supra, and we do not at this time consider, determine or adjudicate such a defense, if the same exists.

The merits of the motion for a clarification of the opinion as made by counsel for the appellant and the petition for a rehearing as made by counsel for the appellees have been carefully considered and we have concluded that the same should be and each is hereby denied.

It is so ordered.

BROWN, C. J., TERRELL, and THOMAS, JJ., concur.