Opinion
Opinion filed April 30, 1929. Petition for rehearing denied June 4, 1929.
A Writ of Error to the Circuit Court for Pinellas County; O. L. Dayton, Judge.
Reversed.
H. R. Williams, J. P. Donley, Dickenson Lake and McMullen, Worth Draper, for Plaintiff in Error;
Clair A. Davis, Arthur R. Thompson, Cook, Blanchard Hoffman and Parker Parker, for Defendants in Error.
Alternative writ of mandamus was issued on the 14th day of December, 1928, by the Honorable O. L. Dayton, Judge of the Circuit Court in and for Pinellas County. What was termed a demurrer to the petition for alternative writ was filed and appears to have been considered by the Court as demurrer to the alternative writ of mandamus. Motion to strike the petition was filed. On final hearing the demurrer was sustained and the motion to strike was granted.
The motion to strike was not a proper method of assault either upon the petition for the alternative writ nor upon the alternative writ and, therefore, should not have been considered by the Court. This, however, has no material effect in this case because upon the order being made sustaining the demurrer the alternative writ of mandamus was dismissed.
Writ of error was taken from the judgment of the court sustaining the demurrer and dismissing the alternative writ. The judgment complained of should be reversed upon authority of the opinion in the case of Vincent Nuccio, Jr. v. W. T. Williams et al., filed February 13, 1929, and it is so ordered.
Reversed.
TERRELL, C. J., AND WHITFIELD, ELLIS, STRUM, BROWN AND BUFORD, J. J., concur.