This is an appeal from an interlocutory order entered in a pending chancery case in which the appellant Broward County Port Authority was defendant below. The order appealed from reads as follows:
"ORDER "This cause came on to be heard upon the application of Plaintiff for the disqualification of the undersigned as Judge of said Court, together with objections interposed by the Defendants, and the Court having considered same.
"THEREUPON, IT IS ORDERED, ADJUDGED AND DECREED, that the undersigned Judge does hereby certify he is disqualified to hear said cause by reason the fact that he is a resident and taxpayer of the Broward County Port District, and that the objections filed by the Defendant to said petition for disqualification be, and the same are, hereby overruled.
"DONE, CERTIFIED AND ORDERED in Chambers in the City of Fort Lauderdale, Broward County, Florida, this 2nd day of May, A.D. 1933.
Geo. W. Tedder Judge of the Circuit Court." *Page 134
The point now before us raised by a motion to dismiss the appeal, is whether or not an order of disqualification entered by a Circuit Judge in a Chancery Case is an appealable interlocutory order or decree within the purview of Section 4961 C. G. L., 3169 R. G. S.
The section just referred to reads as follows:
"Appeals may be taken and prosecuted from any interlocutory order, decision, judgment or decree of the circuit courts of this State, when sitting as Courts of equity; but the conferring of the right shall not be construed so as to deprive either party from deferring and postponing the entry of his appeal until after the entry of the final decree, or end of the cause as prescribed by law; nor shall such postponement of the appeal be decreed, held or taken to be an acquiescence in the propriety of any interlocutory order or decree made in the progress of the case, or any waiver of any error therein. (Ch. 521, Jan. 7, 1852, Sec. 3, as amended by Ch. 4130, Acts 1893)."
Mandamus, and not an appeal, is the remedy usually resorted to in this State by a party who desires to proceed before a judge whom he deems qualified to act, but who refuses to act as such judge because of an erroneous belief that he is disqualified to do so. State ex rel. Colcord v. Young, 31 Fla. 594, 12 Sou. Rep. 673; Power v. Chillingworth, 93 Fla. 1030, 113 Sou. Rep. 280; State v. Chillingworth, 93 Fla. 1107, 113 Sou. Rep. 563; State ex rel. First American Bank Trust Co. v. Chillingworth, 95 Fla. 699 116 Sou. Rep. 633; State ex rel. McMullen v. Thomas, 99 Fla. 562, 126 Sou. Rep. 747; State exrel. Mickle v. Rowe, 100 Fla. 1382, 131 Sou. Rep. 333; Brownlee v. State, 95 Fla. 775, 116 Sou. Rep. 618.
But it does not follow that the same relief may not also be obtained by direct appeal from an order of disqualification *Page 135 when the order appears to have been entered because of aruling that was required to be made by the judge in order to arrive at the conclusion that he was disqualified. There is an essential difference between a case wherein the judge ex merumoto because of facts he judicially knows, determines and certifies to his disqualification, and that kind of a case where some question of disqualification is raised by one of the parties, through a motion or objection interposed, which, in order to dispose of it, requires the challenged judge to make aruling on the matter of objection presented. The latter kind of an order is clearly an appealable interlocutory order, although the first may not be. This is so, because no order, but merely a certificate of disqualification, is required in the former situation. See Stearns v. Stearns, 106 Fla. 440, 143 Sou. Rep. 642, where the Judge's alleged disqualification was passed upon here upon an appeal. See also: Hirsch Co. v. McDonald Furn. Co., 94 Fla. 185, 114 Sou. Rep. 517.
In situations like that here presented, while mandamus will also lie to compel action by a judge who erroneously has sustained an objection interposed raising his alleged disqualification, it may nevertheless be conceded that the ruling in the form of an order, which underlies the judge's refusal to act, presents a justiciable matter decided as a proposition of law in the court below and is therefore an appealable interlocutory order.
The motion to dismiss the appeal is denied.
WHITFIELD, ELLIS, TERRELL, BROWN and BUFORD, J. J., concur.
ON PETITION FOR REHEARING