
    Gordon Hays, as County Judge of DeSoto County, et al., v. State, ex rel Ralph Logan.
    183 So. 474.
    Division B.
    Opinion Filed August 2, 1938.
    Rehearing Denied October 6, 1938.
    
      Leitner & Leitner and M. A. Rosin, for Plaintiffs in Error;
    
      L. 0. Stephens and Treadwell & Treadtvell, for Defendant in Error.
   Per Curiam.

—This writ of error is addressed to a judgment awarding the issuance of a peremptory writ of mandamus. This judgment was rendered in response to a motion made by the relator for the granting of the peremptory writ notwithstanding the answer or return. The judgment of the court below must be affirmed upon the authority of Canova v. State, 18 Fla. 572; Board of Commissioners v. Johnson & Co., 21 Fla. 578; State v. Seaboard Air Line R. Co., 92 Fla. 1139, 111 So. 735; Ray v. Wilson, 29 Fla. 342, 10 So. 613; State, ex rel. Burr, v. Seaboard, etc., R. Co., 92 Fla. 61, 109 So. 656.

“A return to an alternative writ of mandamus should, for the purpose of making an issue, set up a positive denial of the fact stated, or should state other facts sufficient to defeat relator’s writ. A mere answer that a sum stated is not the correct amount is not sufficiently specific.” Such was the holding in the Canova case, supra. The chancellor evidently followed this rule in granting the peremptory writ. The facts of the two cases are somewhat different but the principle underlying the Canova case appears to be applicable in this- case.

The Court does not deem it necessary or appropriate to express any views upon the question or questions involved in the equity case pending in the Circuit Court for DeSoto County, out of which this mandamus proceeding arose.

Affirmed.

Ellis, C. J., and Whitfield, Brown, Buford and Chapman, J. J., concur.

On Petition for Rehearing.

Per Curiam.

—The order heretofore made affirming the judgment awarding the peremptory writ of mandamus is adhered to, but is modified to the extent of permitting the court below to entertain, consider and rule upon an application by the defendant County Judge, if seasonably made to the trial court, to set aside said judgment awarding the peremptory writ and allow him to file within such time as the court may see fit, an amended and more specific answer or return to the alternative writ, the sufficiency of such amended answer or return to be subject to be tested and ruled upon in accordance with the established procedure in mandamus proceedings.

Rehearing denied, and judgment of affirmance adhered to, but modified as above stated, and cause remanded.

Ellis, C. J., and Whitfield, Terrell, Brown, Buford and Chapman, J. J., concur.  