The respondent J. M. Lee, as Comptroller, interposed an answer to the alternative writ heretofore issued in this cause on January 12, 1934. About a week prior to that date the relator by his counsel had moved this Court for a peremptory writ for failure of the Comptroller to answer the alternative writ. A copy of the relator's motion was served the same day upon attorneys for the respondent by forwarding a copy of such motion to them by United States mail. The copy of the motion contained a notice that the relator would call up the motion before the Court on the 16th day of January.
No permission of the Court was obtained by the respondent to interpose the answer after the motion for a peremptory writ had been lodged in this Court, nor was any attention whatsoever paid to the motion by respondent, nor has he since the filing of the motion nor upon the date on which it was called up for consideration by counsel for relator asked leave from the Court to interpose the answer. Whether relator's counsel has been given an opportunity to respond to the answer by motion or replication or joinder of issue does not appear from the files in this Court nor has the Comptroller furnished this Court with any evidence that a copy of the answer or notice of its attempted filing in this case has been served upon relator or his counsel.
The alternative writ required the Comptroller to show cause before this Court on August 16, 1933, why he has *Page 864 refused to issue the warrant to the respondent for the amount of his salary.
Instead of replying or showing cause why the command of the writ was not obeyed the Comptroller replied with dilatory motions to quash the writ and amend it, which were denied.
On January 4, 1934, a petition for a rehearing was filed and denied but no request for leave to interpose an answer was made, nor was any order made allowing an answer to be filed or fixing the time within which it should be filed if respondent desired to make an answer.
The relator was entitled to his peremptory writ on the date he moved for its issuing in the absence of any leave granted by this Court to respondent for further time in which to answer. Ignoring the rules of procedure as he did does not give to him the right to be heard on his answer which he sought to interpose in the circumstances.
The rules applicable in mandamus and quo warranto cases in the circuit court provide that the practice will be regulated in each case to secure as speedy a determination of the cause as is justified by the circumstances of each case. Rule 79, Rules Circuit Court. That procedure is followed by this Court in cases of original jurisdiction.
Rule 4 or the Rules for the Supreme Court provides that in appeal cases when a motion is duly made further proceedings in the cause as to filing papers thereunder will be suspended until the disposition of the motion and then the filing will be regulated by special order of the Court. While that rule does not apply in terms to this case it affords a sufficient suggestion to parties as to the procedure that should be followed.
A motion to quash an alternative writ of mandamus admits as true all such matters of fact as are sufficiently *Page 865
pleaded. See State, ex rel. Burr v. Jacksonville Terminal Co.,
That rule of pleading being true it follows that when one party seeks to rest the sufficiency of the allegations of fact in an alternative writ of mandamus, interposes a motion to quash the writ although the admission of the alleged facts is for the purposes of the particular pleading, he should if he desires to deny those facts by an answer or reply, obtain leave of the Court to do so in the event his motion is overruled.
Notwithstanding that rule for the orderly conduct of judicial business ignored by the Comptroller we have, in the belief that the method pursued by him through his counsel was through an oversight and in no sense a wilful disregard of the rules of procedure, decided to deny at this time the motion for a peremptory writ and allow the respondent ten days from the entry of this order in which to interpose an answer to the writ denying the material allegations of employment of the relator by the "Assessment Board" for the period alleged and that he has never been discharged by a majority vote of the board from such employment, if the Comptroller desires to make such averments. The so-called answer attempted to be filed in this case and hereinbefore mentioned is stricken from the files.
So ordered.
TERRELL, BROWN and BUFORD, J. J., and HUTCHISON, Circuit Judge, agree to the conclusion.
DAVIS, C. J., disqualified. *Page 866
