The opinion
ON PETITION FOR REHEARING
THOMAS, J.:
In their petition for rehearing planitiffs in error insist that the judgment contained in the court’s opinion was erroneous because it required that testi
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mony be taken on one of the issues formed by the return to the alternative writ and for the further reason that it contemplated, if that issue was established by evidence, that peremptory writ eventually issue for only part of the amount claimed. It is the position of the plaintiffs in error that the peremptory writ should issue for the whole amount or none of it and that upon a motion for peremptory writ notwithstanding the answer there should be either a peremptory writ for relator or the alternative writ should be discharged without taking of any testimony.
We have studied the history of the common law rule that upon motion for peremptory writ notwithstanding the answer judgment might be entered on the. motion without further proceedings and we have also examined the decisions relative to the requirement that the peremptory writ should conform to the alternative writ. It is our view that in recent years there has been a trend away from the strict rule that a petitioner could not obtain a part only of the relief sought (35 Am. Jur., Mandamus, Sec. 383) and we are agreeable to adopting that view inasmuch as cases often arise, — the present one is a good illustration of such a situation — where it is entirely practicable and sensible to dispose of the litigation in one suit rather than discharge the writ and require the petitioner to institute another action to secure relief which could be easily granted without the additional expense and delay. Common Law Rule 87, paragraph (b) recognizes the propriety of such procedure: “When any such alternative writ is well founded a peremptory writ may issue without further amendments, to the extent such alternative writ is well founded.” For the same reason it appears logical,
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in the instant case, that the petitioner be given the opportunity'of showing, before a final judgment is entered, that money is available in the public treasury to pay the warrant when approved. This view seems harmonious with Common Law Rule 86, providing that: “In the exercise of this discretion the court will have due regard for the rights of the parties, and will regulate the practice so as- to secure as speedy a determination of the cause as is justified by the circumstances of each case.” By following that procedure the inconvenience and cost of another suit would be precluded and the whole controversy decided on its merits in the present action.
We adopt this rule being, meanwhile, fully conscious of the opinion in the case of State ex rel. Burr v. Seaboard Air Line Railway Company, 92 Fla. 61 , 109 So. 656 , 273 U. S. 729 , 71 L. Ed. 862 , 47 S. Ct. 239 , and the pronouncement therein and in any other opinions to the contrary is, therefore, overruled.
The petition for rehearing is denied.
BROWN, C. J„ WHITFIELD, TERRELL, BUFORD and CHAPMAN, JJ., concur.
ADAMS, J., not participating.