The appeal in this case has been heretofore dismissed by an order entered without opinion on the 7th day of August, 1933. The matters involved are now before *Page 136 us again on the petition of appellants seeking a rehearing as to that order.
The appellees filed in the lower court their suggestion of disqualification of the Circuit Judge, Honorable George W. Tedder. This was based upon the fact that he was a resident and tax payer of the Broward County Port District and that inasmuch as the validity of the bonds sued upon by the complainant were drawn in issue, the judge was interested in the result thereof. The suggestion of disqualification as filed by the appellees was not disposed of until May 2, 1933, at which time the circuit judge granted the motion for disqualification and entered the order of disqualification from which this appeal has been taken. A motion to dismiss this appeal on the ground that an order of disqualification of a circuit judge is not an appealable order has been heretofore denied by this Court. See foregoing opinion filed June 21, 1933.
On May 31, 1933, in an opinion filed in the original prohibition case of Ake et al. v. Tedder, Circuit Judge, we held that the Circuit Judge was disqualified to entertain and decide a mandamus proceeding involving practically the same questions as are involved in this case now before us.
The record in the present case shows that after the complainants below had submitted to the circuit judge their suggestion of disqualification on December 14, 1932, they subsequently called up for hearing before the alleged disqualified circuit judge a motion to dissolve an injunction granted by him, as well as their motion to dismiss the defendant's counter claim, and a motion to strike parts of the defendants' answer. On April 29, 1933, before the circuit judge had ruled on the suggestion of disqualification or other motions, appellants filed certain objections to the complainants' suggestion of disqualification of the circuit judge. *Page 137
The objections filed by the appellants to the suggestion of disqualification that had been filed by the appellees were as follows:
"Defendants show to the Court that the Plaintiff has waived his application for disqualification of the Honorable Geo. W. Tedder as presiding Judge in this Court, for that subsequent to the filing of his said application for the disqualification of said Judge the said Plaintiff voluntarily and on his own initiative has called up for disposition and hearing before the said Judge Tedder a motion to dismiss Defendants' counterclaim, a motion to strike the counterclaim, and a motion to strike parts of the counterclaim and answer, and has argued the same orally before the said Judge, and all of this was done at the instance and initiation of the Plaintiff after the Plaintiff had made and filed said application for disqualification of the said Judge."
So the sole proposition presented by this appeal was whether or not the disqualification of a circuit judge on account of interest in the result can be expressly or impliedly waived by the parties to the litigation so as to vest the circuit judge with jurisdiction to proceed notwithstanding his actual disqualification under the statute (Sections 4152-4155 C. G. L., 2525-2528 R. G. S.).
We think the proposition referred to has been conclusively decided by the opinion of this Court in the case of Stateex rel. Central Farmers' Trust Co. v. Chillingworth, Circuit Judge, 107 Fla. 747, 143 Sou. Rep. 294, wherein we held in substance that under the statute a circuit judge who has adisqualifying interest in the result of litigation is ipsofacto cut off and disqualified to make any order or decree in the cause, even in cases where the circuit judge has acted in good faith without knowledge of the disqualifying circumstances. *Page 138
In the opinion just referred to this Court disposed of the proposition of waiver of disqualification urged in that case by saying: "The terms of the statute are clear and unequivocal, permitting no exception or modification. Any other interpretation placed on it than the one here applied would open the way for endless qualifications never intended by its enactment and would doubtless result in many cases of a defeat of the administration of justice."
It was no doubt the holding of this Court in the case just cited and quoted from that led to the enactment of the Legislature at its 1933 session of Chapter 16053, Acts of 1933, Laws of Florida, modifying the pre-existing statutes governing the disqualification of judges in an attempt to soften the rigorous application of the old disqualification statute to cases in which the parties affected may desire to waive the disqualification of the circuit judge in those particular circumstances authorized by the 1933 statute.
However, the 1933 statute is not applicable to the case at bar. This case we deem to be controlled by the opinion of this Court in State ex rel. Central Farmers' Trust Co. v. Chillingworth, supra. Therefore the appeal herein, which presents no other question than that which has been decided in the case just referred to, should stand dismissed upon the authority of what was decided in that case and in the original prohibition case of Ake v. Tedder, Circuit Judge, supra, wherein we held that Judge Tedder was disqualified to act in any case involving the validity of bonds of a taxing district of which he was a resident and tax payer.
The petition for rehearing must therefore be denied for the reasons hereinbefore stated.
WHITFIELD, ELLIS, TERRELL, BROWN and BUFORD, J. J., concur. *Page 139
ON MOTION TO MODIFY INJUNCTION ORDER