W. E. WILLIAMS AS COUNTY JUDGE, AND W. H. MILTON,
v.
JOHN CAPEHART, AS ADMR
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The Florida Supreme Court denied a petition for rehearing, holding that defenses to a rule nisi must be raised in the lower court, not in a rehearing petition to the appellate court.
No, defenses to a rule nisi must be raised in the lower court through a proper return, and cannot be introduced in a petition for rehearing before the appellate court.
“These matters are not set forth in the answer to the writ of mandamus, nor is there the slightest reference to them in the brief filed by the plaintiffs in error.”
Establishes that the new arguments were not presented to the lower court or in the initial appeal.
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Join FLexlaw to unlock all legal intelligenceThe County Judge issued a rule nisi against an administrator. The administrator failed to comply and did not present any defenses in the lower court. …
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Hocker, J.—
(On petition for rehearing.)
A petition for rehearing has been filed in this case, in which several matters are stated as affording reasons why County Judge Williams could not enforce the rule nisi issued against W. H. Milton as administrator, by the County Judge’s predecessor in office. These matters are not set forth in the answer to the writ of mandamus, nor is there the slightest reference to them in the brief filed by the plaintiffs in error. The peremptory writ of mandamus simply commands the County Judge to “require the said W. EL Milton as said Administrator to obey the rule nisi forthwith, or show cause why he fails to do so, and proceed in other respects according to law.” If W. Et. Milton as administrator has any good and sufficient defense to the rule, there is no reason why he may not set it up by return, and in this way the merits of his defense may be legally tested. Such a defense cannot be set up in a petition for rehearing in this court. The petition for rehearing is denied.
Taylor and Parkhill, J. J., concur;
Whitfield, C. J., and Shackleford and Cockrell, J. J., concur in the opinion.