A petition for rehearing having been granted herein and the cause having been again submitted to the Court upon the record and upon further briefs and oral argument submitted by counsel for the respective parties, we hold that the sufficiency of the plea tendered *Page 21 and refused is not passed on in this proceeding on certiorari, as that is a question which should be first determined by the trial court. The holding here is that there was such an abuse of discretion in refusing to permit the plea to be considered, that the trial court departed from the essential requirements of the law, by reason of which the judgment of the Circuit Court affirming the trial court's judgment, should itself be quashed as not being according to the essential requirements of the law.
The Court being fully advised in the premises, it is ordered and adjudged by the Court that the Court do adhere to the opinion and judgment entered in this cause at the last term of this Court, pursuant to which the judgment of the Civil Court of Record for Dade County in this cause was ordered to be quashed.
BUFORD, C.J., AND WHITFIELD, TERRELL AND DAVIS, J.J., concur.
ELLIS AND BROWN, J.J., dissent.