Opinion
October 31, 1956.
Petition from the Circuit Court, St. Johns County, P.B. Revels, J.
Hall, Hedrick Dekle and Dunham Bennett, St. Augustine, for petitioner.
Bryan W. Henry, Miami, and Frank D. Upchurch, St. Augustine, for respondent.
This is a condemnation proceeding wherein the petitioner herein was defendant in the circuit court. In its answer Howard Johnson, Inc., attempted to create an issue on the necessity for taking. At the threshold we are impelled to observe that this is a type of common law action in which in all probability we would grant "special dispensation" and entertain the petition for certiorari if the answer or those portions of it which were stricken were sufficient to establish such an issue.
We agree, however, with the able circuit judge that the attempt to make such an issue was abortive. Although replete with conclusions that there is no necessity for the taking, the answer fails to allege sufficient facts to create an issue upon that subject. Consequently we must, and do hereby, deny the petition for certiorari.
Certiorari denied.
DREW, C.J., and HOBSON, THORNAL and O'CONNELL, JJ., concur.