This case is before us on three motions, viz.:
(1st.) Motion for leave to amend alternative writ of mandamus;
(2nd.) Motion to strike from the answer of the respondent application for a rehearing in said cause, and
(3rd.) Motion to quash answer of the respondent to the alternative writ of mandamus.
Leave to amend the alternative writ so the command thereof will read as follows:
"Now, therefore, this is to command you, the said J.M. Lee, Comptroller of the State of Florida, that you perform your duty of signing warrants for the petitioner's salary lawfully due him from the 16th day of July, 1937, to the 16th day of November, 1937, *Page 473 amounting to the sum of $1331.31, and forthwith deliver to the relator, or to Benjamin Axleroad, his attorney of record herein, the warrants so signed by you, or else to appear before the Supreme Court of the State of Florida at the Supreme Court building in the City of Tallahassee, Florida, on the 2nd day of June, 1941, at 10:00 A. M. and that you then and there show cause why the relief prayed for and sought by the petitioner in said petition for writ of mandamus should not be granted, to-wit: to sign the warrants for salary which he claims is lawfully due him from July 16, 1937, to November 16, 1937, in the sum of $1331.31, as aforesaid." — is granted.
Petition for rehearing has been denied so the motion to quash the answer and return will be considered as motion for peremptory writ notwithstanding the answer and return.
The allegations of the answer and return are insufficient to constitute any defense to the alternative writ not considered and set at rest by our opinion and judgment filed herein on June 10, 1941.
It, therefore, follows that peremptory writ of mandamus will be awarded according to the order of the amended alternative writ.
So ordered.
BROWN, C. J., WHITFIELD, BUFORD and ADAMS, J. J., concur.