THE STATE OF FLORIDA, EX REL. MINNIE MAY RAULERSON AND ELIZABETH MAY RAULERSON, MINORS, BY THEIR NEXT FRIEND CHARLES HENRY RAULERSON, AND HERMAN CLEVELAND RAULERSON, CHARLES HENRY RAULERSON AND JOSEPH SAMPSON RAULERSON, PLAINTIFF IN ERROR,
v.
A. L. DURRANCE, AS CLERK OF THE CIRCUIT COURT, DEFENDANT IN ERROR
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The Florida Supreme Court reversed a judgment dismissing a mandamus action seeking to compel a circuit court clerk to issue a writ of possession following an ejectment judgment. The court held that the clerk has a ministerial duty to issue the writ of possession upon demand, regardless of parallel betterment proceedings regarding improvements on the property.
The clerk has a ministerial duty to issue a writ of possession upon demand based on the ejectment judgment, independent of and without reference to betterment proceedings. This duty may be enforced by mandamus in the absence of a restraining judicial order or direction.
“Quite independent of and without reference to the betterment proceedings, and in the absence of a restraining judicial order or direction, it is upon demand the duty of the clerk to issue an appropriate writ of possession predicated upon the judgment for the plaintiffs in ejectment, and that duty may be enforced by mandamus.”
Establishes the core holding that the clerk's duty to issue the writ of possession is ministerial and independent of betterment proceedings
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Join FLexlaw to unlock all legal intelligenceAn ejectment action was brought by heirs of a homestead owner against a defendant who had occupied the property and made improvements. Prior ejectment…
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Whitfield, J.
This writ of error was taken to a judgment for the defendant in mandamus proceedings brought to require the Clerk of the Circuit Court to issue a writ of possession to enforce a judgment for the plaintiffs in an action of ejectment.
. A judgment in ejectment obtained against the heirs of the owner of a homestead was reversed. Raulerson v. Peeples, 77 Fla. 207, 81 South. Rep. 271. Subsequently a judgment for the plaintiff heirs was rendered and an order restraining execution process was reversed. Raulerson v. Peeples, 81 Fla. 206, 87 South. Rep. 629.
Before the judgment for the plaintiffs in ejectment, the defendant had put improvements upon the property.
. The clerk having refused to issue a writ of possession pursuant to the judgment for the plaintiff heirs of the homesteader, an alternative writ of mandamus was issued, which writ was dismissed upon a return of the defendant clerk that in betterment proceedings tmder the statute concerning improvements put upon the property, a judgment had been rendered, and pursuant to the statute the plaintiff heirs had elected to take the adjudged value of the lands. It does not appear that the rights of the heirs to the land had been extinguished by consent, satisfaction or otherwise. ' ‘‘ "Quité independent of' and without reference to the betterment proceedings, and in the absence of a restraining judicial order or direction, it is upon demand the duty of the clerk to issue an appropriate writ of possession predicated-upon the judgment for the plaintiffs in ejectment, and that duty may be enforced by mandamus.' No opinion is expressed as to. the legality or propriety of the betterment proceedings as they may affect the homestead property.
Reversed for appropriate proceedings pursuant to this opinion..
Browne, C. J., and Taylor and Ellis, J. J., concur. West, J., concurs in conclusion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Knabb v. Hutson, 212 So. 2d 665 (Fla. 1st DCA 1968)…he authorities cited to the Court seem to be in general agreement that a writ of possession in an ejectment action issues as a matter of course upon application therefor made to the clerk of the circuit court. In State ex rel. Raulerson v. Durrance, 83 Fla. 375, 91 So. 331 (1922), it was held that the issuance of the writ of possession by the clerk is a ministerial duty enforceable by mandamus. Professor Crandall’s Treatise, Florida Common Law Practice, Ejectment and Betterment suits, Section 266, Judgment…
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Cohen v. Ginsberg, 715 So. 2d 1113 (Fla. 4th DCA 1998)…ers in ejectment, he or she may have one writ for possession, damages and costs or, if the plaintiff elects, have separate writs for possession and damages. § 66.021(3), Fla. Stat. (1997) (emphasis supplied). In State ex rel. Raulerson v. Durrance, 83 Fla. 375, 91 So. 331 (1922), the supreme court held that it was the duty of the clerk to issue an appropriate writ of possession upon demand “predicated upon the judgment for the plaintiffs in ejectment.” See Knahb v. Hutson, 212 So. 2d 665 (Fla. 1st DCA 196…
Authorities Cited
- Raulerson v. Peebles, 77 Fla. 207 (Fla. 1919)
- Raulerson v. Peeples, 81 Fla. 206 (Fla. 1921)