44 Fla. 179 | Fla. | 1902
The alternative writ of mandamus in this cause alleges that the Birmingham Trust and Savings Company, a corporation, was plaintiff in a suit against -the Jackson County Mill Company, pending in the Circuit Court for Jackson county,, and that the trial of said cause at the Spring term, 1901, of said court, resulted in a verdict and judgment against plaintiff for costs amounting to $40.77, which sum was paid by plaintiff; that plaintiff sued out a writ of error to the Supreme Court where said cause is now pending; that the said Birmingham Trust and Savings Company, feeling itself aggrieved by a number of the charges made by Moses Guyton, clerk of said court, for official fees included in his bill of costs taxed in said cause, applied, after due notice to said clerk, as required by -statute, to respondent at a regular term of said Circuit Court to have the correctness of said charges/ determined as provided by law. The notice given to the clerk states that said plaintiff felt aggrieved by charges wilfully and knowingly made for costs by said clerk in is-aid cause, on account of charges for constructive service, charges twice
The return of respondent states that the allegations contained in the writ are true, but that movant intended in and by his said motion and notice to demand and recover from the defendant in said proceeding, Moses Guyton, the penalty provided by paragraph 2, section • 1305, Revised Statutes, for unauthorized charges wilfully and knowingly made by officers, and' it was so understood and treated by the parties; that respondent has not refused, and does not refuse, to exercise his right as Judge of the First Judicial Circuit to supervise and correct the taxing of costs, but respondent did refuse and still refuses to take jurisdiction of said motion as an original action for the recovery of the penalty provided by paragraph 2, section 1305 of the Revised Statutes, as said demand was less than one hundred dollars.
Relator inoves for a peremptory writ of mandamus on' the grounds that the return admits the allegations in the writ, and that it shows no sufficient cause why peremptory writ should not issue.
Judge Reevesi submits the view that the proceeding under the statute is an original one to recover a penalty against an officer, not involving simply the taxation o'f
It is settled in this State that when a court refuses to exercise jurisdiction that it clearly possesses mandamus' lathe proper remedy to compel its exercise. Ex parte Hen
What is said in reference to the application of mandamus sufficiently answers the further contention made, by the clerk why the peremptory writ ¡should not he granted.
The motion for peremptory writ is granted, but as we' do not doubt that the Circuit Judge will proceed to exercise the jurisdiction in the matter brought before him as herein indicated, we will direct this opinion to be certified to him, and withhold the issuance of the peremptory writ unless further directed.