On petition for rehearing, plaintiff in error has pointed out an inaccuracy in the statement of facts in the foregoing opinion, wherein it is stated that: *Page 641
"The answer did not show the pendency at the time of any definite plan for refunding the city's bonded indebtedness. The contention of the plaintiff in error here that the Circuit Court abused its discretion in rendering the judgment and granting the peremptory writ, upon the authority of State, ex rel. Bottome v. City of St. Petersburg,
The above statement to the effect that the City did not have a "definite plan for refunding the city's bonded indebtedness," is not strictly accurate, but the inaccuracy is really immaterial, and the conclusion reached by this court was correct. The allegations of the answer filed by the city to the alternative writ do set out a more or less definite plan for the refunding of the city's bonded indebtedness, but it was indefinite as to the matter of time. In the Bottome case, the answer or return of respondents showed that the city of St. Petersburg not only had a definite plan of refunding, but that 90 per cent of its bondholders had accepted such plan and that a bona fide effort was being made to refund in the near future the city's obligations as a whole. That was a case of original jurisdiction, and in view of these allegations this court held that the peremptory writ in that case, although awarded as a matter of strict legal right, should nevertheless be stayed in its enforcement for such reasonable period of time as would enable this Court to be definitely advised whether or not the refunding operations that had already been contracted for and begun could be successfully concluded to the advantage of all concerned.
Now in this case, the city's return, after setting forth briefly the plan of refunding and alleging that the owners of slightly more than 75 per cent of the outstanding bonds had accepted the plan, alleges that: "Respondents believe that if said city is not interfered with that it will eventually be able to refund its indebtedness and refinance itself so *Page 642 that the property owners will pay the taxes and said city be able to function as a municipality." It is further alleged in the answer that there was then pending in Congress a bill to give municipal debtors relief in the bankruptcy courts of the United States, and that if said Act is passed and becomes a law, said municipality can and will immediately commence proceedings to complete its plan of refinancing in the event it has not previously been able to do so by the voluntary action of its creditors.
A careful review of the Bottome case will show that the allegations of the return to the alternative writ in this case does not measure up to the situation presented in the cited case. The matter of the time within which a refunding of the city's obligations might possibly be accomplished was so indefinite that the court below could not be held by this Court to have abused its discretion in granting the judgment and in awarding the peremptory writ. Such judgment being correct at the time of its rendition, in that it was within the discretion of the trial court to render under the facts set forth in the alternative writ and the answer thereto, the relator in the court below was and is entitled to a judgment of affirmance by this court, with leave to the trial court to entertain and act upon any appropriate motion which may be made in the light of the fact that since such judgment was granted and such writ was issued, and before the enforcement of such writ, the bankruptcy proceedings have intervened and an adjudication of bankruptcy has been rendered. This authority in the trial court to take further appropriate action was provided for in our original opinion and judgment of affirmance.
The petition for rehearing will therefore be denied.
*Page 643TERRELL, C.J., and WHITFIELD, CHAPMAN and THOMAS, J.J., concur.
