State ex rel. Bernhart v. Barrs
| Decision Date | 26 March 1943 |
| Citation | 12 So.2d 576,152 Fla. 631 |
| Court | Florida Supreme Court |
| Parties | STATE ex rel. BERNHART et al. v. BARRS, Judge. |
Appeal from Circuit Court, Duval County; Miles W. Lewis judge.
Will O Murrell and John E. Lake, both of Jacksonville, for appellants.
McCarthy Bond & Lane and William B. Bond, all of Jacksonville, for appellee.
Appellants instituted an action for personal injuries in the Civil Court of Record for Duval County against Robert James and Crystal M. Peebles. The foundation for the action was an automobile accident which occurred in Nassau County. The defendants filed a plea of privilege alleging they were citizens of West Virginia and claimed the right to be sued in Nassau County, where the cause of action accrued. A demurrer to the plea of privilege was overruled and a motion to dismiss the cause was granted.
Appellants then filed petition for alternative writ of mandamus in the Circuit Court of Duval County praying that appellee be required to take jurisdiction of and proceed with the cause or show cause why he refused to do so. A motion to quash the alternative writ was sustained, the cause was dismissed, and this appeal was prosecuted.
The question presented is whether a non resident may claim the privilege of being sued in the county where the cause of action accrued. It turns on the interpretation of Section 46.01 Florida Statutes of 1941, F.S.A. § 46.01, as follows:
'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.
The Circuit Court answered this question in the affirmative on authority of Payne v. Ivey, 83 Fla. 436, 93 So. 143. Linger v. Balfour, 102 Fla. 591, 136 So. 433; and McGowin v. McGowin, 122 Fla. 394, 165 So. 274, are also relied on by appellee to support the holding of the Circuit Court though it is admitted that their support is only inferential. In Payne v. Ivey, the defendant was the director general of railroads and lived in Washington but was administering property located in the county where the cause of action accrued.
The question posed is concluded by the effect given to the last sentence of the statute quoted, 'This section shall not apply to suits against non-residents'. Appellant contends that this provision excepts the non resident from the terms of the act and that he cannot claim the privilege of being sued in the county where the cause of action accrued, while appellee contends that the quoted provision only limits the paragraph of the...
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