E.O. Painter Fertilizer Co. v. Du Pont

• Decision Date: 17 December 1907
• Citation: 45 So. 507,54 Fla. 288
• Parties: E. O. PAINTER FERTILIZER CO. v. DU PONT.
• Court: Florida Supreme Court

45 So. 507

54 Fla. 288

E. O. PAINTER FERTILIZER CO. v. DU PONT.

Florida Supreme Court, Division A.

December 17, 1907

Error to Circuit Court, Duval County; Rhydon M. Call, Judge.

Action by the E. O. Painter Fertilizer Company against Charles A. Du Pont. Judgment for defendant, and plaintiff brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Under the statute a defendant, a natural person, has a right to have an action that is brought against him begun in the county where he resides, unless the cause of action accrued in another county of the state, or unless the property in litigation is in another county of the state.

A plea of the statutory right or privilege to have an action brought against a natural person begun in the county where he resides is a plea in abatement; but it is not a denial of the jurisdiction of the court over the person of the defendant and the filing of pleas to the merits with such a plea is not, under our system, an implied waiver of the plea in abatement, in the absence of anything in the record to indicate a waiver or an abandonment of the plea of privilege.

A plea in abatement to the venue, filed with pleas to the merits does not prejudice or embarrass or delay a fair trial of the action, and, when properly interposed in good faith, should not be stricken.

In an action, when issue is joined on a plea claiming the privilege of the defendant to have the action begun in the county of his residence, and also on pleas to the merits, and the evidence clearly shows that the cause of action accrued in the county of defendant's residence, it is not error to direct a verdict for the defendant on the plea of privilege.

COUNSEL Bryan & Bryan and Geo. P. Fowler, for plaintiff in error.

Cooper & Cooper and A. H. Mickler, for defendant in error.

OPINION

WHITFIELD J.

On December 15, 1906, the plaintiff in error brought an action of assumpsit in the circuit court for Duval county against the defendant in error. The defendant filed six pleas; the first being in abatement to the venue, averring the right to have the action begun in St. Johns county, where he resides and where he avers the cause of action accrued. The other pleas were to the merits. The first plea prayed that the declaration be quashed. Issue was joined on pleas 2 to 6 inclusive. The defendant moved to strike the first plea to the venue on the grounds that such plea was waived by pleading to the merits and that the plea tended to hinder and delay justice. This motion was denied May 4, 1907, and issue was also joined on the first plea. At the trial, June 1, 1907, the court directed a verdict and entered judgment for the defendant on the issue made upon the first plea, claiming the privilege to have the action begun in St. Johns county, where the defendant resides. The other issues were left undisposed of. A motion for new trial was overruled. The plaintiff excepted and took writ of error. Errors are assigned on the orders (1) refusing to strike the plea of privilege; (2) directing a verdict for defendant on the plea of privilege; and (3) denying the motion for new trial.

At common law a defendant was required to present pleas singly and in a particular order. In general, the filing of a plea to the merits waived the dilatory pleas that might have been previously filed. Tidd's Practice, 630; Tyler's Stephens on Pleading, 370; Mitchum v. Droze, 11 Rich. Law (S. C.) 196); Taylor v. Kelly, 13 Ark. 101. The delay and inconvenience incident to presenting pleas in sucessive order led to statutory changes to facilitate the disposition of litigated causes.

The General Statutes of 1906 provide; Section 1454: 'All pleas shall be sworn to, either by the defendant or his agent or attorney. But it shall be no objection to any plea that it is contradictory to any other plea filed by the same party at the same time.' Section 1455: 'The defendant may plead a many matters of fact as he may deem necessary to his defense.'

Pleas are required to be sworn to as evidence of the good faith of the pleader. State ex rel. Edwards v. County Commissioners of Sumter County, 22 Fla. 1.

In the case of Putnam Lumber Co. v. Ellis-Young Co., 50 Fla. 251, 39 So. 193, pleas to the merits were presented with what were called pleas challenging the jurisdiction of the court over the defendant, a nonresident corporation. It was held that the denial of the jurisdiction of the court over the nonresident defendant corporation was not a plea within the meaning of the statutes above quoted, and that under the established practice in this state any voluntary step in a cause taken by a defendant, that in effect recognizes the jurisdiction of the court over the defendant, operates as a waiver of the challenge or denial of the jurisdiction of the court over the defendant. See, also, Ray v. Trice, 48 Fla. 297, 37 So. 582; Dudley v. White, 44 Fla. 264, 31 So. 830; Oppenheimer v. Guckenheimer, 34 Fla. 13, 15 So. 670; Parkhurst v. Stone, 36 Fla. 456, 18 So. 594; P. R. C/O. V. PEACOCK, 44 FLA. 176,

Section 1383 of the General Statutes of 1906, provides that '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.' Under this statute a defendant, a natural person, has a right to have an action that is brought against him begun in the county where he resides, unless the cause of action accrued in another county of the state, or unless the property in litigation is in another county of the state. See Florida Cent. 33 So. 247; Florida Ry. Co. v. Gensler, 14 Fla. 122. McDougal, Adm'r v. Lea, Ex'r, 2 Fla. 532.

Objections to the venue that do not appear on the record should be made by plea in abatement. Bucki v. Cone, 25 Fla. 1, 6 So. 160. A plea of the statutory right or privilege to have an action brought against a natural person begun in the county where he resides is a plea in abatement; but it is not a denial of the jurisdiction of the court over the person of the defendant. It avers a right or privilege to have the action begun in another county, named in the plea. A proper service of process or an appearance gives the court jurisdiction of the person of the defendant, and the court may proceed to a determination of the cause, unless the statutory privilege to be sued in another county exists, and is duly pleaded, and is not waived. The privilege given by the statute to a defendant who is a natural person may be expressly waived, or it may be impliedly waived as by failing to plead it, or by abandoning it after it is pleaded; but the record should in some way show the waiver. A general appearance, or a stipulation not relating to the venue, is not an implied waiver of the privilege. Curtis v. Howard, 33 Fla. 251, 14 So. 812. See, also, Edwards v. Bank, 1 Fla. 136, text 155.

The presentation of pleas to the merits or in bar, with a plea of the privilege to be sued in the county where the defendant, a natural person, resides, or with other pleas in abatement, has not been regarded as an implied waiver of the right or privilege. See Gibbs v. Davis, 27 Fla. 531, 8 South. , 633; Hanover Fire Ins. Co. v. Lewis, 28 Fla. 209, 10 So. 297.

Where a demurrer to a plea in abatement is sustained, the judgment should be respondeat ouster--that defendant answer over. 1 Enc. Pl. & Pr. 30, and authorities cited. If the privilege is properly pleaded, and issue is joined thereon, and there are no other pleas, on a finding for the plaintiff the appropriate judgment is quod recuperet--that the plaintiff recover. Bishop v. Camp, 39 Fla. 517, 22 So. 735. Where the defendant succeeds on a plea in abatement, whether the issue be one of law or of fact, the judgment should quash the writ or declaration. Campbell v. Hudson, 106, Mich. 523, 64 N.W. 483; Clark v. Latham, 25 Ark. 16; Tyler's Stephens on Pleading, 134; 1 Tidd's Practice, 642; 4 Minor's Inst. 955; Russ v. Mitchell, 11 Fla. 80.

The common-law practice of having appearance and trial terms entailed delay in the disposition of causes. To remedy this appearance terms were abolished by statute in this state, and the first Monday in each month is designated as a rule day for the circuit and county courts, when process is returned, appearances are entered, pleas filed, and causes are matured for trial. The statute requires declarations to be filed on or before a stated rule day, appearances to be entered on the return day of the writ of summons, pleas to be filed on the rule day succeeding that on which the declaration is filed, and all causes to be matured for hearing at the next term as the rules provide. Circuit court rules 15 and 17, which have the force of law, provide that all pleas shall be filed at the rule day next succeeding the rule day on...