City of St. Petersburg v. Earle, 847

• Decision Date: 30 January 1959
• Docket Number: No. 847,847
• Citation: 109 So.2d 388
• Parties: CITY OF ST. PETERSBURG, a Municipal Corporation, Appellant, v. Thomas G. EARLE et al., Appellees.
• Court: Florida District Court of Appeals

Page 388

109 So.2d 388

CITY OF ST. PETERSBURG, a Municipal Corporation, Appellant, v. Thomas G. EARLE et al., Appellees.

No. 847.

District Court of Appeal of Florida, Second District.

Jan. 30, 1959.

Rehearing Denied Feb. 18, 1959.

Harry I. Young, Lewis T. Wray, Frank D. McDevitt, and Carl R. Linn, St. Petersburg, for appellant.

J. C. Davant, Clearwater, for appellees.

SHANNON, Judge.

Appellant, as defendant in the court below, was sued by the appellees in the Circuit Court of Hillsborough County for an injunction and for damages arising from the pumping of water from its well field located in the County of Hillsborough, of which county the appellees were residents. The defendant filed a motion to dismiss on the following grounds:

'1. That the Court lacks jurisdiction over the subject matter.

'2. That the Court lacks jurisdiction over the City of St. Petersburg, a Municipal Corporation, located in Pinellas County, Florida.'

The chancellor in his order stated in part:

'This Court is going to treat the second ground stated in the motion to dismiss, to-wit: 'that the Court lacks jurisdiction over the City of St. Petersburg, a municipal corporation, located in Pinellas County, Florida,' as though it were a motion which sets up the question of improper venue.'

The chancellor also in his order found that the present case would be governed by the rule laid down in Williams v. City of Lake City, Fla.1953, 62 So.2d 732, wherein was cited with approval the case of Piercy v. Johnson City, 130 Tenn. 231, 169 S.W. 765, L.R.A.1915F, 1029. The court in Williams v. City of Lake City, supra, held that unless there is a valid statute changing the rule, a municipal corporation had to be sued in the county in which it was situated. However, the chancellor's order goes on to say:

'* * * that under the charter of the City St. Petersburg there was an express provision which allowed the city in any suit where the court had jurisdiction to sue and be sued in any court in the state and in all matters whatsoever. The charter of the city of St. Petersburg is found in Chapter 15,505, of [Sp.] Laws of Florida [1931], and the first section of that chapter reads: 'The inhabitants of the City of St. Petersburg, Florida, within the boundaries hereinafter designated, or within such boundaries as may hereafter be established, shall continue to be a body politic and corporate under the name 'City of St. Petersburg', and as such shall have perpetual succession, may use a common seal, may contract and be contracted with, and may sue and be sued and be impleaded in all the courts of this State and be in all matters whatsoever' * * *. The claim is made here that the language of the charter of St. Petersburg above quoted nullifies or qualifies the general rule as stated in Williams v. Lake City. I think this claim is well founded and that under that statute, which is Section 1 of the charter of St. Petersburg, and under the case of Lakeland Ideal Farm and Drainage District v. Mitchell, 97 Fla. 890, 122 So. 516, that the venue in the instant case is properly placed in Hillsborough County, Florida.'

In other words, the chancellor held that absent the cited language of the St. Petersburg charter, the present suit would have to be brought in Pinellas County, Florida, and grounded his decision on this fact of the case.

For the purpose of reviewing the chancellor's order, it is necessary that we take up, in the first instance, where this case should have been brought originally and in the second place, assuming that it should have been brought in Pinellas County, does the language of the charter of St. Petersburg, 'and may sue and be sued and be impleaded in all the courts of this State and in all matters whatsoever,' give the plaintiffs the choice of two counties in which to sue?

We realize, as the chancellor below did, that the courts of various states have ruled both ways on this question. However, when the Florida case of Williams v. City of Lake City, supra, and the cases from other courts which are cited with approval are reviewed, there can be no question of where it should have been brought in the first instance. The defendant takes the position that the question is jurisdictional, while the plaintiffs urge that it is a question of venue. It is unnecessary that we decide this question in the instant case, and we do not. A majority of the cases from other states cited by the parties are concerned with a transitory cause of action, although in some of the cases it is a local one.

In the case of Williams v. City of Lake City, supra, which was decided by the Supreme Court of Florida in 1953, a tort claim was filed making Lake City a joint defendant in Duval County, Lake City being in Columbia County, and a motion was filed in Circuit Court to dismiss the complaint because of improper venue, the court sustained the motion to dismiss and Justice Drew, speaking for the court, had this to say, in part :

'Section 2.01, F.S.A., provides that the common and statute laws of England of a general nature down to July 4, 1776--but inconsistent with the constitution and laws of the United States or of this State--are in force.

'Under the common law no action could be brought against a municipal corporatin outside the county where it was situated, unless an express statute authorized it to be sued elsewhere. Marshall v. Kansas City, 95 Kan. 548, 148 P. 637, L.R.A.1915F, 1025; City of Jackson v. Wallace, 189 Miss. 252, 196 So. 223; 38 Am.Jur. 420, Par. 716. The appellant contends, however, that Sections 46.01 and 46.02, F.S.A., which read as follows:

'46.01 Where suits may be begun. Suits shall be begun only in the county (or if the suit is in the justice of the peace court in the justice's district) where the defendant resides, or where the cause of action accrued, or where the property in litigation is located.

"If brought in any county or justice district where the defendant does not reside, the plaintiff, or some person in his behalf, shall make and file with the praecipe or bill in chancery, an affidavit that the suit is brought in good faith, and with no intention to annoy the defendant. This section shall not apply to suits against nonresidents.

"46.02 Suits against defendants residing in different counties or districts. Suits against two or more defendants residing in different counties (or justices' districts) may be brought in any county or district in which any defendant resides.'

are inconsistent with the common law on the subject under the facts in this case, and that she is authorized to maintain this action in Duval County. We are not impressed by this argument. The majority of the courts have held that actions against municipal corporations are inherently local and that they must be sued in the county in which they are located. While we recognize that there are authorities to the contrary, we believe this rule is based on logic and reason and is the better rule.'

* * *

* * *

'This appears to be the rule in the United States Courts, in Alabama, California, Georgia, Kansas, Maryland, Michigan, Minnesota, Mississippi, Montana, Nebraska, Ohio, Pennsylvania, Tennessee, Texas, Washington and West Virginia. The theory upon which this rule is founded is set forth in the case of Nashville v. Webb, 114 Tenn. 432, 85 S.W. 404, 405, 4 Ann.Cas. 1169.

'In that case, plaintiff brought suit against Nashville and others in Wilson County for personal injuries by reason of a defective sidewalk in the City of Nashville--Nashville is located in Davidson County. The city filed no answer, although service was obtained upon its Mayor. Judgment was entered in behalf of the plaintiff for $4,000. Execution was issued and placed in the funds (sic) of the Sheriff and the City of Nashville brought suit to enjoin the execution on the grounds that the suit should have been brought in Davidson County. The Circuit Court granted the injunction and the Supreme Court affirmed it. The Court used this language:

"* * * But actions against municipal corporations are inherently local. These bodies cannot change their situs or their place of abode. They cannot remove from one place to another, and sojourn for a time at this point or that. They remain stationary; hence they must be sued where they are found--that is, in the county of their location. It is a misnomer, a misapplication of terms, to speak of an action against such a body as transitory, no matter what the ground may be on which the right of action rests. Such actions are not only inherently local, but it is of the greatest importance to the welfare of such bodies and of the citizens whom they serve, that their officers should be permitted to remain at home and discharge their public duties, instead of being called hither and thither over different parts of the state to attend to litigation brought against the city through the agency of counterpart writs."

It will be noticed that the language of Justice Drew, as well as the language in Nashville v. Webb, supra, speaks of an action against a municipal corporation as being inherently local. For instance in the Webb case there was no defense by the City of Nashville and a default and final judgment were entered against it. The rationale of that case is that the question was necessarily jurisdictional, a question which we do not decide in the present case.

Justice Drew cites with approval Piercy v. City of Johnson City, supra [130 Tenn. 231, 169 S.W. 766], and it is necessary that we take that case into consideration. In that case, as in the present case, the plaintiff was suing the city 'in an action of damages caused to his land in Unicoi county by the diversion of the waters of two large springs out of their natural channel and away from his land below.' The plaintiff had brought his suit in Unicoi County, whereas the City of Johnson City was in another county. In holding that the defendant should be sued in the county in which it was located, the...