
    Ed. Friedrich v. J. M. Brown and Theodore L. Brown, trading as Brown and Son
    198 So. 701
    En Banc
    Opinion Filed November 19, 1940
    
      Wilkerson & Gaylord, for Petitioner.
    
      T. H. Getsen, for Respondents.
   Chapman, J.

On March 12, 1938, Ed. Friedrich filed in the County Court of Sumter County, Florida, an action in replevin against J. M. Brown and Theodore L. Brown, trading as Brown and Son, for the purpose of obtaining possession of certain described personal property. The Sheriff of Sumter County, Florida, took possession of the described personal property under a writ of replevin and within the three-day period provided by statute, the possession thereof was by the said sheriff redelivered to the de-. fendants on the posting of a forthcoming bond conditioned according to law.

On the 2nd day of May, 1938, plaintiff filed a declaration' in the County Court of Sumter County, Florida. On June 6, 1938, the defendants filed a motion to dismiss the cause of action on the grounds: (a) a copy of the cause of action upon which the action in replevin was based was not attached to the declaration; (b) a copy of the declaration was not served upon the defendants on or before the rule day succeeding the filing of the declaration.

On June 6, 1938, without notice to counsel for plaintiff, the motion' of the defendants was granted and the replevin suit dismissed and the order of dismissal was signed by Roy Caruthers, Clerk of the County Court in and for Sumter County. Counsel for plaintiff presented a motion to vacate and set aside the order of dismissal and the said motion was denied and the order of denial was dated October 21, 1939, and signed by J. M. Eaddy, Judge.

An appeal was perfected from the order of dismissal as made by the County Court of Sumter County to the Circuit Court of Sumter County and a motion was made in the circuit court to dismiss the said appeal on numerous grounds appearing in' the motion. On the 29th day of February, 1940, Honorable J. C. B. Koonce, circuit judge, made and entered an order granting the said motion to dismiss.

On August 1, 1940, a .petition for a writ of certiorari was filed in this Court seeking to review the order dated February 29, 1940, dismissing the said appeal taken' to the Circuit Court of Sumter County, Florida, from the order of dismissal of the replevin suit made and entered by the clerk of the county court and the later order made by the judge of the county court overruling and denying a motion to vacate and set aside the order of dismissal of the suit in' replevin.

The order of dismissal of the replevin suit, after the defendants had obtained a redelivery to them of the described personal property by giving a bond as provided for by Section 5341 C. G. L., was unauthorized and void. Neither the clerk nor the judge of the County Court of Sumter County was authorized to dismiss the replevin suit after the possession of the described property had been redelivered to the defendants and thereby depriving the plaintiff of his rights conferred by statute. The remedy of the petitioner was an action in mandamus against the judge of the County Court of Sumter County commanding that he discharge the duties imposed by law. See State ex rel. Heavelow v. Frederick, 121 Fla. 494, 163 So. 885; Crump v. Branning, 74 Fla. 522, 77 So. 228.

The petition for a writ of certiorari is hereby denied.

Whitfield, Brown, Buford, and Thomas, J. J., concur.

Chief Justice Terrell not participating as authorized by Section 4687, Compiled General 'Laws of 1927, and Rule 21-A of the Rules of this Court.  