McMullen v. McMullen, 1854

• Decision Date: 19 August 1960
• Docket Number: No. 1854,1854
• Parties: J. Tweed McMULLEN, Appellant, v. Chester B. McMULLEN, Jr., and Ruth D. McMullen, his wife, H. H. Baskin, Jr., and Anne H. Baskin, his wife, Appellees.
• Court: Florida District Court of Appeals

Page 626

122 So.2d 626

J. Tweed McMULLEN, Appellant, v. Chester B. McMULLEN, Jr., and Ruth D. McMullen, his wife, H. H. Baskin, Jr., and Anne H. Baskin, his wife, Appellees.

No. 1854.

District Court of Appeal of Florida, Second District.

Aug. 19, 1960.

Howard W. Duke, Baya Harrison, Jr., Mann, Harrison, Mann & Rowe, St. Petersburg, for appellant.

Dewey A. Dye, Dye & Dye, Bradenton, for appellees.

ALLEN, Chief Judge.

The appellees, as plaintiffs in the lower court, filed their complaint along with an affidavit of good faith against the appellant, as defendant, seeking specific performance of a contract between the parties whereby the defendant was to purchase certain realty owned by the plaintiffs. Summons was issued and served on the defendant in Pinellas County by the Sheriff of Pinellas County. The defendant then moved to dismiss plaintiffs' complaint on the ground of improper venue as all of the parties are residents of Pinellas County and the cause of action accrued in said county, although the land involved is located in Manatee County. The lower court denied this motion stating:

'This cause coming on to be heard upon defendant's motion to dismiss upon the ground of improper venue and it having been made to appear to the Court by examination of the record and by stipulation of the parties hereto that the defendant at the time of the filing of this action, and at all times material herein, was and is a resident of Pinellas County, Florida, the residence of plaintiffs likewise being in said county, and further that the negotiation, making and the execution of the contract herein involved and the alleged breach thereof occurred in Pinellas County, Florida, whereupon the Court finds that Pinellas County is the county wherein the defendant resides, that the alleged cause of action accrued in Pinellas County, and that the land in litigation is located in Manatee County, and even though the Court recognizes that the suit is one for specific performance, an action in personam; it is

'Ordered, adjudged and decreed that defendant's action to dismiss for improper venue be, and the same hereby is, denied; * * *.'

From this order the defendant has taken this interlocutory appeal.

The complaint, which was filed in Manatee County, shows that Chester B. McMullen, Jr., and his wife, Ruth D. McMullen, H. H. Baskin, Jr., and his wife, Anne H. Baskin, are residents of Pinellas County, Florida, and jointly own certain property situated in Manatee County.

It is further shown that J. Tweed McMullen, the defendant, is a resident of Pinellas County, that the transactions involved in this suit took place in Pinellas County so the cause of action accrued in Pinellas County.

The complaint was brought by the owners and sellers of the property to require the buyer to specifically perform his agreement to purchase the property, pay the purchase price, execute the documents necessary for completion of the contract and, in addition to the decree of specific performance, that plaintiffs be compensated for damages occasioned by breach of contract on the part of defendant; that the court retain jurisdiction pending efforts to collect until an execution be issued, and 'for entry of such other and further orders as may be necessary and proper and for granting such general relief in the premises as equity may require and to your Honor may seem meet.' (Emphasis added.)

The question involved in this case is: 'Whether in a suit for specific performance of a contract for purchase and sale of certain realty located in Manatee County, Florida, brought by the sellers against the proposed purchaser, venue is proper in Manatee County on the basis that the real property described in the contract is 'the property in litigation,' as contemplated by section 46.01, Florida Statutes [F.S.A.], even though all parties to the suit, including the defendant, are residents of Pinellas County, Florida, and all transactions and the alleged breach of the contract, i. e. the cause of action, arose in Pinellas County?'

Section 46.01, Florida Statutes, F.S.A., provides:

'Suits shall be begun only in the county ( * * * ) where the defendant resides, or where the cause of action accrued, or where the property in litigation is located.'

Kooman, Florida Chancery Pleading and Practice, § 379, Specific Performance, page 823, states:

'Venue.--A suit for the specific performance of a contract to sell land is purely in personam. When a court of chancery has acquired jurisdiction over the person of a party, it may, by virtue of its power to coerce obedience to its decrees, compel him to execute a conveyance or pay the purchase price of land regardless of where it may be situated. Consequently, a suit for specific performance of such a contract need not be brought in the county where the land lies.

'It also follows from the foregoing principle that a suit for the specific performance of a contract to sell lands may be maintained in a Florida court even though the land is located in another state. The decree in such a case cannot operate to transfer title to the land, as it may where the land is situated in Florida, but, under the full faith and credit clause of the Constitution of the United States, it is binding upon the consciences of the parties and concludes them as to all matters properly adjudicated and determined in the suit.'

In the case of Enfinger v. Baxley, Fla.1957, 96 So.2d 538, 540, the Florida Supreme Court, in an opinion by Mr. Justice Roberts, said:

'Section 46.02 places a qualification upon the venue privilege granted to an individual defendant by section 46.01 and to a corporate defendant by Section 46.04. * * * It gives a plaintiff the right to make the final choice of the forum in which his suit will be tried as between the conflicting interests of defendants whose venue privileges, as granted by Section 46.01 and/or Section 46.04, do not fall within the same county. The applicability of the statute is clear where the venue privileges of the defendants are co-equal and not co-existent in the same county. * * * but the individual defendant if sued alone would have the privilege, under Section 46.01, of being sued in Polk County. In this situation we do not think Section 46.02 should be applied to give to a plaintiff the right to choose the forum in which to bring his suit. 'The right of a plaintiff to have an action tried in another county than that in which the defendant has his residence is exceptional, and, if the plaintiff would claim such right, he must bring himself within the terms of the exception.' Brady v. Times-Mirror Co., 106 Cal. 56, 39 p. 209, 210.

'We hold, therefore, that where an individual defendant is joined as a party defendant with a foreign corporation defendant, and the corporate defendant has an agent in the county in which the individual defendant resides, Section 46.02 cannot be applied to defeat the individual defendant's venue privilege granted by Section 46.01. Cf. Kauffman v. King, supra, 89 So.2d 24, holding that the joinder of non-resident individual defendants does not defeat the resident defendants' venue privilege granted by Section 46.01.'

In the case of Bailey v. Crum, 120 Fla. 36, 162 So. 356, the Florida Supreme Court, in effect, held that a suit for specific performance of an agreement to sell land need not be brought in the county where the land lies. The Court discussed the historical development of the venue statutes and, in its opinion on page 359, said:

'* * * The act of 1887 was designed to perfect the right, already possessed by the creditor, of instituting his suit for the collection of his claim in the county where the cause of action accrued, whether it was the residing place of the defendant or not, by extending to him the further right to send out the process of the court where his suit was brought into any county of the state within which the defendant might be found either permanently or temporarily located, there to be served upon him by any officer there authorized to serve it. By the terms of section 4 of said act of 1887, however, the new right extended by the act to procure service outside of the county in which the suit is brought, is expressly confined and limited to cases that are rightfully brought in counties where the property in litigation is located, or in which the cause of action accrued, or, when there is nothing local in the suit, in a county where one of the defendants resides, where there is more than one defendant. (Emphasis ours.)'

Subsequently the same case came before the Supreme Court styled as Crum v. Baily, 135 Fla. 192, 184 So. 774, 776, and in this suit the Court held that in a suit to set aside a decree pro confesso in a specific performance suit, amendment to the bill of complaint alleged that the cause of action for specific performance did not accrue in county in which specific performance suit had been instituted and that none of the defendants in the specific performance suit resided in such county was insufficient for failure to allege that subject matter of litigation was not located in county in which suit was instituted. The Court, in its opinion, said:

'The third part of the amendment to the bill of complaint, that the cause of action did not accrue in Polk County,...