31 Fla. 594 | Fla. | 1893
The petition, which by consent stands as the alternative writ of mandamus in this proceeding, shows that on the 23d day of June last, Russell E. Colcord, by his next friend, John L. Colcord, and "the rector, wardens and vestry of St. John’s Episcopal Church, of Jacksonville, propounded 'for probate before the county judge of Duval counry, sitting in the exercise •of his probate jurisdiction, a written instrument purporting to be the last will and testament of one Amanda L, Colcord, in which alleged last will and testament, the rector, wardens and vestry of St. John’s ■Church, Jacksonville, a religious corporation is named .as beneficiary. The county judge refused to admit the instrument to probate, and entered an order to that effect. Erom this order the relators appealed to the Circuit Court of the fourth circuit sitting in and for Duval county; and afterwards upon the cause coming on to be heard, the defendant herein, the judge of that circuit, refused to hear the same, on the ground indicated by the following order, which he then and
' The first point suggested by the relator’s brief is as-to the remedy, and in this connection the decision of this court in State vs. Van Ness, 15 Fla., 317, is called, to our attention and questioned. In it Judge Yan Ness set up in his return to the writ of mandamus, that he had held himself incompetent to sit in the-cause in which it was sought to compel him to act, because the Pensacola & Louisville Railroad Company was a party, and that stock in the company was owned by W. A. Richardson and W. B. Belknap, the-former of whom, and the wife of the latter, were-cousins of the judge’s wife. It was admitted by the relator in its application for the.writ, that Richardson.
The judgment wehaye formed is that the conclusion reached in the above case as to the remedy is erroneous. No authorities are cited in it. The opposite conclusion had been adjudged in Ex parte Henderson, 6 Fla., 279, and Anderson vs. Brown, Id., 299, where it was held that mandamus would lie from this court to the Circuit Court in case of its refusal to entertain jurisdiction when directed by law. The Circuit Court had refused to in the former case entertain .an appeal taken from a judgment of a justice of the peace, the Circuit Court holding that it did not have the appellate jurisdiction, yet mandamus was awarded to require it to hear the appeal; while in the latter case an appeal was taken to. this court from the order of the Circuit Court dismissing the appeal from the justice’s judgment.
Whenever a circuit judge refuses to exercise juris-’ -diction in a cause of which he has jurisdiction, and should exercise it, mandamus is a proper remedy, at
In Ex parte Bradstreet, 7 Pet., 634, where a United States District Court dismissed certain writs of right' because the declarations did not show that the value-of the land involved exceeded $2,000, the Supreme-Court of the United States awarded a writ of mandamus to require the former court to reinstate the-causes, and proceed to try them, it being the practice-to allow the jurisdictional value to be given in evidence, though not stated in the declaration. In Railroad Co. vs. Wiswall, 23 Wall., 507, it was decided that an order of a Circuit Court of the United States-remanding a cause to a state court for want of jurisdiction to decide it was not a final judgment, in the-sense which authorizes a writ of error,- and that the-remedy of the party against whose will the action had. been commenced was by mandamus to compel action,, and not writ of error to reverse what had been done.. See also Insurance Co. vs. Comstock, 16 Wall., 258. The same court in Ex parte Parker, 120 U. S., 737, 7
In Cavanaugh vs. Wright, 2 Nev., 166, a mandamus issued to require a district court to try de novo an appeal which the district judge thought could only be tried as upon writ of error. In Floral Springs Water Co. vs. Rives, 14 Nev., 431, there had been judgment before a justice of the peace in favor of the company, against a county,- ancf the county having appealed to the district court the judge of the latter court refused to hear the appeal, on the ground that a justice of the peace had no jurisdiction of an action against a county ; but the Supreme Court of that state held that justices had such jurisdiction, and awarded a mandamus requiring that the appeal be heard. In Cowan vs. Fulton, 23 Grat., 579, where a circuit judge refused to hear certain causes which had been transferred to his court, he holding that the statute directing the transfer was unconstitutional, a mandamus issued, directing him to reinstate and hear them; and in answer to the contention that orders striking the causes from the docket for want of jurisdiction could not be reversed by mandamus, it was decided such orders were not judgments in the causes, but simply refusals to hear and decide the cases. Kent vs. Dickinson, 25 Grat., 817, is to the same effect.
The following cases, like those above, also illustrate the appropriateness and efficacy of this writ where there is a refusal to exercise lawful jurisdiction : Ex parte Dickson, 64 Ala., 188 ; Steele vs. County Coms.,
If the respondent, Judge Young, is disqualified by the facts stated to hear the appeal, any decision he might make in the case would be of “no force or validity,” but “null and void.” Section 970, Rev. 'St. If so disqualified, he has no power or jurisdiction to hear the case. Sections 967, 969, 970, Rev. St. On the contrary, if he is not disqualified by the circumstances alleged, it is his duty to hear the appeal, and exercise his ordinary judicial functions in the cause, -and it is the right of the relator to have him do so.
The fact that the question of jurisdiction may be raised on appeal from the judgment of the court on. the merits does not preclude the remedy by mandam
In State vs. Walker, 25 Fla., 561, 6 South. Rep., 169, there is an intimation of the correctness of' the-conclusions reached.
II. The incorporation of churches of the Protestant Episcopal faith, as well as those of other denominations, was begun early in the history of the territory,, after its acquisition by the United States ; the first instance here of an incorporating statute relating to the-Episcopal Church being one approved July 2, 1823, and entitled “An act to incorporate the Protestant Episcopal Congregation of the city of St. Augustine.”’ By it the then incumbent wardens, two in number, and five vestrymen, whose several names are given, and-, their successors in office, were made a body corporate-of the name and style of “The Churchwardens and1. Vestrymen of the Episcopal Church in St. Augustine-called ‘Trinity Church.’”
On the 23d day of February, 1839, “An act to incorporate the Protestant Episcopal Church at Jacksonville” was approved, and by it William J. Mills,. Samuel L. Burritt, and Robert L. Bigelow, wardens,, and Harrison R. Blanchard, and such others as were-elected vestrymen of the Episcopal Congregation at Jacksonville, and their successors in office, were de
It is upon this act, we understand, that the St. John’s Episcopal Church at Jacksonville, of which Judge Young is a vestryman, rests its claim as a distinct body to corporate franchises. We find no. other statute under which on this record we can take judicial knowledge of its incorporation as a separate legal entity as distinct from its membership of “Protestant Episcopal Church in the Diocese of Florida,” as incorporated by the act of February 1, 1881, (Chapter 3352), amending that of February 10, 1838. Such being the case presented to us, we perceive no reasonable ground for questioning the action of the judge in holding himself to be disqualified under our statute, which provides that no judge of any court shall sit or preside in any cause to which he is a party, or in which he is interested, or in which he would be excluded from being a juror by reason of interest, consanguinity, or affinity to either of the parties. Section 967, Rev. St. We are entirely satisfied that a. stockholder in a private corporation is disqualified by interest to sit as a judge in a cause to which the company is a party, though he himself is not named on. the-reeord... Insurance Co. vs. Price, 1 Hopk., Ch., 1;
Through the force and effect of this act the corporate franchise granted by it attaches to the churchwardens and vestrymen. In fact there can be no corporate body, nor can it have any right or powers as .such, without them. The purpose of the act is that the wardens and vestrymen, in the corporate capacity which the statute attaches to them, shall, as they are -chosen and installed, be invested with the property, .and have, exercise and perform the powers and functions indicated by the statute. The particular -end in view was continued succession, and thereby an .avoidance of the inconveniences incident to frequent ■changes in the personality of the wardens and vestrymen. That they exercised these functions and powers in a corporate capacity, wdiich the law attaches to them, instead of as mere individuals, does not lessen their interest in the property which they may hold, nor in - the property rights which they represent. 'These interests are certainly property interests, both as to the wardens and vestrymen in their corporate capacity, and as to the church or congregation as the cestui que trust; and they are none the less so as to the former body because they hold them in trust for
Whether or not a vestrymen can sit as judge or juror in a case in which the right of his church to property is involved, independent of any statute defining his powers and duties, we are not called upon to decide. Cleage vs. Hyden, 6 Heisk., 73. Nor do we consider the effect of the variance between the corporate name presented by the pleadings, and that to be found in the act of 1839. We decide the questions presented, .and nothing more.
Judgment will be entered in favor of the defendant.