L.B. Mcleod Const. Co. v. State

Decision Date28 September 1932
PartiesL. B. McLEOD CONST. CO. et al. v. STATE, for Use and Benefit of STANDARD OIL CO.
CourtFlorida Supreme Court

En Banc.

Certiorari to Circuit Court, Duval County; Daniel A. Simmons, Judge.

Action by the State of Florida, for the use and benefit of the Standard Oil Company, against the L. B. McLeod Construction Company and another. On certiorari to review a judgment of the circuit court affirming a judgment of the civil court of record in favor of the plaintiff.

Writ of certiorari quashed.

COUNSEL Sutton, Tillman & Reeves, of Tampa, and Robert H. Anderson, of Jacksonville, for petitioners.

Martin H. Long and Thos. E. Kelly, both of Jacksonville, for respondent.

OPINION

PER CURIAM

An action ex contractu was brought in the civil court of record for Duval county by the respondent herein against the petitioners. The declaration contains the following:

'That on or about the 14th day of August, A. D. 1926, the defendant, L. B. McLeod Construction Company entered into a certain contract for the construction of a certain public work in the County of Citrus, State of Florida, the said public work being for the construction or otherwise improving a road between Dunnellon and Holder, in Citrus County, and more particularly known as project No. 682, all in accordance with the terms and provisions of said contract. * * *'
'That to secure the performance of said contract and also the further obligation with the principal contractor to fully and promptly pay the claim of all persons who furnished materials and supplies used in the construction of said public project and of the obligations imposed by chapter 10035 of the Laws of Florida 1925, the said defendants entered into a certain bond or obligation under seal, * * * and that under and by virtue of the terms thereof, the said defendants became bound unto the plaintiff in the penal sum of Ninety-six Thousand Five Hundred and Eighty-three and 24/100 Dollars ($96,583.24) lawful money of the United States of America; that it was necessary to use directly or indirectly in the construction of the work provided for in said contract, certain gasoline and oils, which were furnished by the use plaintiff to one, E. A. Wright, a sub-contractor of the principal on said work, and were actually used in the prosecution of the work provided for in said contract; * * * that said materials were necessary for the use of the equipment operated by the persons working on said public job and were actually so used; that the true value of said materials is Sixteen Hundred Sixty-Five and 73/100 Dollars ($1665.73) * * * that all conditions have been performed and all times have elapsed and all things happened necessary to entitle the plaintiff to the performance by the defendants of the obligations of said contract and bond, and to the payment of the said amount above stated, but that the defendants have failed and refused and still fail and refuse to pay the same.'

One of the defendants in the trial court, the Globe Indemnity Company, a corporation, filed a demurrer to the declaration which was overruled. The other defendant, the L. B. McLeod Construction Company, a corporation, filed the following plea of privilege:

'Comes now the defendant L. B. McLeod Construction Company, a corporation, by its undersigned attorney, and, for a plea of privilege to the declaration filed in this cause, says that the supposed cause of action if any, arose in the County of Citrus, State of Florida, and that said defendant is a corporation organized and existing under the laws of the State of Florida, with its principal place of business in the City of Tampa, and is a resident of the said County of Hillsborough, State of Florida; and that the said corporation has always had its office and place of business in the County of Hillsborough, State of Florida, and nowhere else within said State, and that said defendant does not now have and never has had any office or place of business, or agent or agency in the County of Duval, State of Florida, and that the summons issued in this cause was served upon L. B. McLeod, president of this corporation, in the County of Hillsborough, State of Florida, and this defendant claims its privilege to be sued in the County of Hillsborough, State of Florida, or in the County of Citrus State of Florida.'

The city of Tampa is in Hillsborough county, Fla.

The plaintiff demurred to the plea of privilege on grounds:

'1. That said plea is not in the proper form required for pleas in abatement. 2. That said plea is in effect a plea in bar but as such is insufficient. 3. That the beginning of said plea is not in the form required for pleas in abatement. 4. That the prayer of said plea is defective. 5. That the affidavit attached to said plea is defective. 6. That the said plea does not negative by its allegations all possible intendments.'

The court 'ordered and adjudged that the demurrer filed by the plaintiff to the plea of privilege filed by the defendant, L. B. McLeod Construction Company, be and the same is hereby sustained and leave to amend this particular plea is hereby denied.'

Other pleas were filed and proceedings were had resulting in the following judgment:

'It is * * * considered by the Court that the Plaintiff State of Florida for the use and benefit of Standard Oil Company, a corporation, do have and recover of and from the defendants L. B. McLeod Construction Company, a corporation, the sum of $1,800.65, its damages herein sustained, besides costs in this behalf expended and herein taxed at $31.67 for which let execution issue.'

Such judgment was on writ of error affirmed by the circuit court, and this court allowed a writ of certiorari to the circuit court judgment of affirmance.

The statutes provide that:

'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.' Section 4220(2580), C. G. L. 1927.

'Suits against domestic corporations shall be commenced only in the county (or justice's district) where such corporation shall have or usually keep an office for the transaction of its customary business, or where the cause of action accrued, or where the property in litigation is; and in the case of companies incorporated in other States or Countries, and doing business in this State, suits shall be commenced in a county or justice's district wherein such company may have an agent or other representative, or where the cause of action accrued, or where the property in litigation is situated.' Section 4222(2582), C. G. L. 1927.

The statutory right of a domestic corporation defendant under section 4222(2582), C. G. L., to be sued 'in the county (or justice's district) where such corporation shall have or usually keep an office for the transaction of its customary business, or where the cause of action accrued, or where the property in litigation is' subject to the provisions of section 4220(2580) when applicable may be asserted by a plea in the nature of a plea in abatement, filed before or with pleadings going to the merits. The plea does not challenge the jurisdiction of the court, but asserts the statutory privilege of the defendant as to venue. See Crystal River Lumber Co. v. Consolidated Naval Stores Co., 63 Fla. 119, 58 So. 129; Painter Fertilizer Co. v. Du Pont, 54 Fla. 288, 45 So. 507.

The substantive provisions of section 4220(2580), C. G. L., as above quoted, first appeared as a legislative enactment in the Territorial Act of November 23, 1828, entitled an act 'regulating judicial procedure.' Sections 10 and 11 of the Act of 1828 contain the following provisions:

'No suit shall be brought to any of the Superior courts of this territory against any person residing therein, unless the same be instituted in the judicial district and county, in which the defendant resides: Provided, there be a Superior court...

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  • England v. Cook
    • United States
    • Florida District Court of Appeals
    • January 11, 1972
    ...Fla.1957, 96 So.2d 538; Inverness Coca-Cola Bottling Company v. McDaniel, Fla.1955, 78 So.2d 100 (en banc); L. B. McLeod Const. Co. v. State, 106 Fla. 805, 143 So. 594. ...
  • Tamiami Trail Tours v. Wooten
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    • July 28, 1950
    ...was the ruling in Southern Brewing Co. v. May, 122 Fla. 443, 165 So. 627, 628, where the court stated that in L. B. McLeod Const. Co. v. State, 106 Fla. 805, 143 So. 594, it had been held that a plea of privilege could be filed 'before or with pleadings going to the merits * * *.' (Emphasis......
  • Woodley Lane, Inc. v. Nolen
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    • December 14, 1962
    ...and is applicable in a suit against two corporate defendants, as was held in the two cases above-cited [L. B. McLeod Const. Co. v. State, 1932, 106 Fla. 805, 143 So. 594; Inverness Coca-Cola Bottling Co. v. McDaniel, Fla.1955, 78 So.2d 100], it is equally applicable in a suit against a corp......
  • Permenter v. Bank of Green Cove Springs, C-416
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    ...to exclude the idea that the suit was brought in the proper county. Bailey v. Crum, 120 Fla. 36, 162 So. 356; L. B. McLeod Const. Co. v. State, etc., 106 Fla. 805, 143 So. 594; Ritch v. Adams, 102 Fla. 983, 136 So. 719; Williams v. Peninsular Grocery Co., 73 Fla. 937, 75 So. 517. Where that......
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