Beal v. Third National Bank

350 So. 2d 840, 1977 Fla. App. LEXIS 16704

Opinion

MELVIN, Judge.

Appellants-plaintiffs seek, by interlocutory appeal, reversal of an order dismissing their amended complaint as to defendant Third National Bank. The defendant had filed its motion to dismiss the second amended complaint and for a protective order. Thereafter, defendant filed supplemental motion to dismiss the complaint, alleging entitlement to the provisions of 12 U.S.C. § 94 which provides:

“Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.”

Appellants urge that defendant bank waived its right to claim such venue benefits by first moving to dismiss the complaint on other grounds and moving for a protective order. We hold that the venue motion was filed in season. Fla.R.Civ.P. 1.140 and Vann v. First National Bank in Little Rock, 324 So.2d 94 (Fla.3d DCA 1975).

Defendant bank asserts that it has no banking facilities outside Davidson County, Tennessee. The bank timely asserted its absolute right to venue privileges pursuant to 12 U.S.C. § 94. Mercantile National Bank v. Langdeau, 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523 (1963); and Michigan National Bank v. Robertson, 372 U.S. 591, 83 S.Ct. 914, 9 L.Ed.2d 961 (1963).

AFFIRMED.

SMITH, Acting C. J., and ERVIN, J., concur.