100 Fla. 1520 | Fla. | 1930
A suit in chancery was pending in the Circuit Court of the Sixteenth Judicial Circuit in and for Lake County. During the pendency of the suit the resident Circuit Judge certified his disqualification. Thereafter, a final decree was entered.
Appeal was taken to this Court; the decree was affirmed and, thereafter, execution issued, as ordered in the decree. Thereupon, a motion was made in that cause to stay the execution until further proceedings were had in connection with the matters involved in the original suit. The motion did not in any way attack the regularity or the legality of the execution and, therefore, did not come within the statutory provisions of Sections 2828 and 2829 Rev. Gen. Stats., 4515, 4516 Comp. Gen. Laws. The motion *1522 as filed appears not to have constituted an independent procedure as is contemplated by the sections of the statutes above referred to, but was merely a step in the cause and the allegations thereof address themselves to the conscience and discretion of the Court.
The motion, together with answer thereto, was heard and considered by the Circuit Judge who had heretofore certified his disqualification in the cause. The judge denied the motion for stay of execution. Writ of error was sued out to this Court. The contention sought to be made here is that the order so made by the Circuit Judge was void because of his disqualification in the cause.
It appears to the Court that if this order of the Circuit Judge was reviewable it should have been brought here by appeal and not by writ of error, as it does not come within the statutory provisions for the stay of execution because of illegality or irregularity.
For the reasons stated, the writ of error is dismissed.
WHITFIELD, P. J., and STRUM and BUFORD, J. J., concur.
TERRELL, C. J., and ELLIS and BROWN, J. J., concur in the opinion and judgment.
