The respondents move for leave to file amended answers after peremptory writs of mandamus had been ordered. The relators contend that the motions should not be granted because not made at the proper time and because the proffered amended answers do not affect the merits of the controversy as adjudicated in final orders made.
In mandamus, neither a demurrer to the answer nor a motion for the peremptory writ, the answer notwithstanding, admits either nonclusions of law or conclusions of fact not sustained by facts properly alleged. Although a motion *Page 85
for peremptory writ, the answer notwithstanding, is equivalent to a demurrer to the answer in the sense that each of those pleadings involves a determination of the sufficiency of the answer and admits the truth of all matters pleaded therein, (State ex rel. Burr v. Seaboard Air Line Ry. Co., ___ Fla. ___,
A demurrer to an answer in mandamus contemplates an interlocutory order either sustaining or overruling the demurrer; and if the demurrer is sustained, leave to amend may be allowed in due course. A motion for a peremptory writ of mandamus notwithstanding the answer, contemplates a final order either quashing or dismissing the alternative writ or granting the peremptory writ; and when such a motion for a final order is made, the respondent is thereby put on notice that if the answer is held to be insufficient a final order granting a peremptory writ follows as of course; and if the answer does not fully state the respondent's case, an application to amend the answer may then be made, for after a final order granting a peremptory writ is rendered, amendments are not usually permissable.
The decision rendered by this court herein was not upon demurrers to the answers, but upon motions for peremptory writs upon the pleadings. The respondents did not ask leave to amend their answers, but accepted the issue for a peremptory writ on the answers as filed. The decision that peremptory writs be issued was responsive to the issues as tendered, accepted, argued and submitted. The respondents did not present petitions for rehearing, after the rendition of the final order, but asked that the peremptory writs be not issued until respondents could apply to the United States Supreme Court for writs of certiorari to the final *Page 86 orders of this court. This request was granted. Later motions were made for leave to amend the answers. While, upon due applications, amendments of pleadings should be allowed to further the ends of justice, yet they should not be allowed when not duly applied for, or where the issues that were deliberately made have been finally adjudicated on full submission, or when the amendments can serve no useful purpose. The motions for leave to file amended answers herein, made after the final orders were rendered on issues duly tendered and accepted, do not deserve favorable consideration.
The proposed amended answers aver in effect that the petroleum products are shipped by tank steamers from other States or countries to Florida ports and there unloaded into permanent storage tanks owned and maintained by the shippers and that the shippers know and intend from the inception of the shipment in other States or countries that nearly all of each cargo will be reshipped in tank cars of respondent carriers from the shipper's permanent storage tanks at the Florida ports to interior points for the shipper's purpose of filling yearly contracts with the shipper's customers and of supplying distributing stations at interior points.
But these averments do not meet and overcome the allegations of the alternative writs that the oil is transferred from the shipper's tank steamers to permanent storage tanks owned and operated by the shippers at the Florida ports, from which permanent storage tanks the oil is shipped to interior points over respondents' rail lines as orders therefor are received by the shippers from agents or customers of the shippers.
Nor do the averments of the proposed amended answers state facts showing that the shipments from the shippers' permanent storage tanks at the Florida ports are portions *Page 87 of continuous movements of definite portions of the oil from points of origin in other States or countries to interior points in Florida.
The unloading of the oil from the tank steamers into permanent storage tanks of the owners of the oil is for their own purposes of reshipment as orders are received and not for the purpose of promoting the safe or convenient transit in continuous interstate movement; therefore, the re-shipment is intrastate and not interstate. Motions for leave to file amended answers after peremptory writs had been ordered are denied.
BROWN, C. J., AND ELLIS, TERRELL, STRUM AND BUFORD, J. J., concur.
