State ex rel. Sanchez v. Call

Citations

• 36 Fla. 305

Syllabus

<p>MANDAMUS — LIES TO COMPEL EXERCISE OE JURISDICTION POSSESSED BY A COURT- -REFEREE — JUDGMENT OF IS THE JUDGMENT OF THE COURT MAKING THE REFERENCE — PROCEEDINGS SUBSEQUENT TO APPEAL FROM JUDGMENT OF REFEREE.</p> <p>1. Where an appellate court of last resort, on an appeal from a final judgment rendered by a referee in a cause against an executor of a decedent, reviews and affirms the jfindings of law and fact by the referee, but reverses the final judgment entered by him because of defect merely in the form thereof, pointing out in its judgment of reversal that such referee’s judgment should have been against the defendant executor in his representative capacity to be enforced de bonis testatoris, instead of being against him individually to be collected de bonis propriis, as the same was erroneously entered by the referee; and where the appellate court in such case does not order a venire denovo, but remands the cause with directions “that such further proceeding be had therein as is authorized by law,” nothing further is necessary or proper to be done in the court below than to rectify the defect in form of the judgment entered by the referee, by the entry of a correctly framed judgment in its stead in conformity to the record findings of the referee ; and the duty of making such correction, in such a case, devolves upon the Circuit Judge in whose court the judgment appealed from was entered. In such q, case the entry of a correctly formed judgment in lieu of the defective one entered by the referee is purely a ministerial duty, and mandamus will lie against the Circuit Judge to compel its performance.</p> <p>2. When a court refuses to exercise jurisdiction that it clearly possesses, mandamus is the proper remedy to compel its exercise.</p> <p>3. Under our statutes where a cause is referred to a practicing attorney for trial as referee, such reference does not operate as a transfer of the cause to another tribunal or court, but it remains at all times a cause pen