No. A-480 | Fla. Dist. Ct. App. | Mar 17, 1959
Concurrence in Part
(concurring in part and dissenting in part).
I agree to that part of the majority opinion concurred in by Judges STURGIS and CARROLL, which affirms the trial court’s order quashing appellant’s amended alternative writ of mandamus. The assignments of error on this appeal are confined solely and exclusively to the propriety of the mentioned order. The validity of the order quashing the amended alternative writ is the only issue before us for decision.
I am unable to agree with that part of the majority opinion which remands this cause with directions that it be reinstated on the docket and leave be granted relators to file an amended petition for a further amended alternative writ of mandamus. My reasons for disagreement are manifold and substantial.
The record reveals that no motion or request was made to the trial judge for leave to file a further amended petition for writ following the entry of the quashal order from which this appeal is taken. The trial judge was therefore given no opportunity to rule upon such a request and did not do so. To remand a cause for reinstatement and further proceedings constitutes a reversal on an issue never presented to nor ruled upon by the trial court. Such action by an appellate court is not only improper but unjustified. Fur
The tendency manifest in the majority opinion toward gratuitous paternalism in the administration of justice at the appellate court level creates confusion and uncertainty among the trial judges and lawyers alike. Such practice should be avoided.
. Rule 8.3, F. JR., 31 F.S.A.
Lead Opinion
The appealed-from order of the Circuit Court for Volusia County quashed an amended alternative writ of mandamus commanding the Board of Public Instructions of said county to re-establish the five board member residence district in accordance with Section 230.061, Florida Statutes, 1957, F.S.A., which requires such re-establishment “so as to place in each district, as nearly as practicable, the same number of qualified electors,” or show cause why it refused so to do. The order is affirmed to the extent that it quashes the writ, on the sole ground that the said writ and the relators’ petition on which it was based fail to set forth sufficient facts to show a noncompliance with the provision quoted, but our holding is not to be construed as an approval or a disapproval of the districting plan adopted by the Board. The cause is remanded to the Circuit Court, with directions to reinstate the cause and grant to the relators a reasonable time within which to file an amended petition for a further amended alternative writ of mandamus.