Okeechobee County v. Florida Nat. Bank of Jacksonville
| Decision Date | 09 May 1933 |
| Citation | 112 Fla. 309,150 So. 124 |
| Parties | COUNTY OF OKEECHOBEE et al. v. FLORIDA NAT. BANK OF JACKSONVILLE et al. |
| Court | Florida Supreme Court |
On Rehearing Oct. 12, 1933.
En Banc.
Suit by the County of Okeechobee and others against the Florida National Bank of Jacksonville and another. Defendant named filed a motion to dismiss based on a plea of privilege as to venue, and the motion having been granted as to such defendant, complainants appeal.
Reversed and remanded.
TERRELL and BROWN, JJ., dissenting. Appeal from Circuit Court, Okeechobee County Elwyn Thomas, judge.
George P. Garrett, of Orlando, for appellants.
Rogers & Towers, of Jacksonville, for appellees.
Suit was filed by the appellants here, county of Okeechobee, Fla and F. M. Mobley, J. W. Swain, A. L. Thompson, W. E. Arnold and F. H. Baggott, as and constituting the board of county commissioners of Okeechobee county, Fla., against the Florida National Bank of Jacksonville, Jacksonville, Fla., and J. P. Cochrane, as liquidator of the People's Bank of Okeechobee, Okeechobee, Fla.
The bill of complaint was bottomed on a triparty trust agreement entered into between Florida National Bank of Jacksonville, the People's Bank of Okeechobee, and the board of county commissioners of Okeechobee county, Fla., on the 10th day of April, 1927, in the following language, to wit:
We deem it necessary to set out this agreement in full because by its terms the Florida National Bank of Jacksonville and People's Bank of Okeechobee became liable jointly for any breach of the trust agreement which may have been committed by them and their joint liability for such breach becomes, in the opinion of the writer, the controlling factor in determining the questions now before us.
It is alleged in the bill of complaint that the agreement was violated by the banks in that the securities hypothecated to protect the fund involved were withdrawn by the Florida National Bank of Jacksonville and released from deposit by the People's Bank of Okeechobee without authority and in violation of the trust agreement, particularly in this:
That $40,000 of securities were released on July 3, 1928, when there remained $378,751.46 of the fund on deposit. Again, on September 3, 1928, $50,000 of the securities were released when there remained $305,931.92 on deposit; and so on releases were made of securities contrary to the trust agreement until the 5th day of June, 1929, at which time there was $91,361.54 on deposit in the fund and only $10,000 of securities to protect the same. This $10,000 of securities was credited on the balance of the fund which left a balance due as alleged in the bill of complaint from the Florida National Bank of Jacksonville and People's Bank of Okeechobee of Okeechobee, Fla., to the county of Okeechobee the sum of $81,361.54, and the bill of complaint prays for an accounting for the funds and a payment of the same over to the county of Okeechobee.
It will be at once perceived from the above statement that the Florida National Bank and Cochrane, as liquidator for the People's Bank of Okeechobee, are necessary and indispensable parties to this suit.
The Florida National Bank of Jacksonville filed an appearance and thereafter filed its plea of privilege of venue.
We agree with what has been said by Mr. Justice Terrell in the able opinion prepared by him in this case, that the Florida National Bank of Jacksonville could plead privilege after having filed a general appearance. Plea of privilege is claimed under 12 USCA § 94, which is quoted in the opinion written by Mr. Justice Terrell. We agree that the conclusion reached by Mr. Justice Terrell would be the proper one in many cases, but the law as enunciated in that opinion, we think, is not applicable to this case because, when the Florida National Bank of Jacksonville entered into a triparty trust agreement with the People's Bank of Okeechobee and with the county commissioners of Okeechobee county concerning a trust fund then existing in Okeechobee county and contracted itself into a joint liability with People's Bank of Okeechobec, it thereby waived and estopped itself from claiming the privilege of venue accorded it by the federal statutes above referred to. That such privilege on the part of national banks may be waived is stated in the opinion by Mr. Justice Terrell and authorities are there cited amply supporting the statement. When the Florida National Bank of Jacksonville went into Okeechobee county and there entered into a triparty agreement with another bank located in that county and with the county commissioners, it drew to that contract the statutes of this state which would and do affect the enforcement of the contract and such statutes are to be read into that contract.
It is too elementary to require citation of authorities that a board of county commissioners can only contract in the county of its domicile and when acting in a regular or special meeting of such board. The People's Bank of Okeechobee was contracting in the county of its domicile. Section 2582, R. G. S., section 4222, C. G. L., grants to all corporations the privilege of venue in the county where such corporation shall have or usually keeps an office for the transaction of its customary business. But this privilege may be waived. See Edwards v. Union Bank, 1 Fla. 136; Baker & Holmes Co. v. Indian River State Bank, 61 Fla. 106, 55 So. 836.
And so it is, that had the suit here been brought in Duval county, the domicile of the Florida National Bank, we would be constrained to say that the People's Bank of Okeechobee or its liquidator cannot claim the privilege of venue because it estopped itself from asserting such claim by the terms of its contract.
Section 2580, R. G. S., section 4220, C. G. L., provides that suits against two or more defendants residing in different counties may be brought in any county or district in...
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