The opinion
On Rehearing
Per Curiam
In this case the last opinion was filed on March 10th, 1933, in which the motion to Strike and the demurrer to the amended answer were overruled, with leave to the relators to proceed as they may be advised.
The information in the nature of
quo warranto
was amended by the Attorney General as relator so as to test the right of the municipality to exercise municipal functions over all the territory which was added to the City of Avon Park by the Legislative Acts of 1925 and 1927.
The cause was re-argued after the amendment to the information by the Attorney General.
*672
In the consideration of this case Circuit Judge J. B. Johnson is sitting in lieu of Mr. Chief Justice Davis, disqualified.
After having fully considered the briefs presented and the argument of counsel Mr. Presiding Justice Whitfield, Mr. Justice Terrell 'and Circuit Judge Johnson are of the opinion that the demurrer to the amended answer should be overruled. While Mr. Justice Ellis, Mr. Justice Brown and Mr. Justice Buford are of the opinion that the demurrer to the amended answer should be sustained. This is an original proceeding. It requires a majority of the Court sitting to determine affirmatively that a demurrer to a pleading be sustained. Therefore, the Court being evenly divided, the demurrer here to the amended answer must be overruled.
The answer being held good against attack by demurrer n’-esents issues of fact which in
quo warranto
proceedings the parties have the right to have determined by jury trial. This Court is' without facilities for impaneling juries and conducting jury trials and for that reason this cause will now be dismissed without prejudice to the parties to institute like proceedings in the Circuit Court for the purpose of determining and having adjudicated the questions involved.
It is so ordered.
Whitfield, Ellis, Terrell, Brown and Buford, J. J., and Johnson, Circuit Judge, concur.