Opinion
No. 3955.
May 2, 1963.
Writ of Prohibition.
T. Paine Kelly, Jr., of Macfarlane, Ferguson, Allison Kelly, Tampa, and Larkin, Larkin Goodson, Dade City, for relator.
Richard W. Ervin, Atty. Gen., Tallahassee, Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for respondent.
The relator, E.B. Larkin, signed an affidavit in the case of State Road Department of Florida v. Aiken, et al., Law case #1753, pending in the Circuit Court in and for Pasco County, Florida, the purpose of which affidavit was to disqualify the Honorable Richard Kelly, Circuit Judge of the Sixth Judicial Circuit, from proceeding any further in that case.
E.B. Larkin is an attorney practicing law in Pasco County and signed the affidavit as a reputable citizen, not of kin to defendant or counsel in the cause. Upon the filing of the affidavit and other papers in the disqualification proceeding, Larkin was cited for contempt and sought a writ of prohibition here.
This case was consolidated for oral argument with the case of Scussel v. Kelly, Fla. App., 152 So.2d 767, Case No. 3942, in which case our opinion has been filed this date in this court.
It would serve no purpose to detail the factual background of this case as we have gone extensively into such facts in the Scussel opinion. We stated in the Scussel opinion, No. 3942, as follows:
"We conclude that, under the factual situation expressed in this case, we should prohibit the trial judge from proceeding further in the principal case, except to disqualify himself, and from proceeding further in the contempt cases. We do this because of the unusual factual situation in this case hereinabove noted and do not lay this down as a general rule to be followed. * * *"
We believe that due to the close affiliation of this case with the Luckie contempt cases, a writ of prohibition should issue in this case also.
It is so ordered.
SHANNON, C.J., and ALLEN and SMITH, JJ., concur.