Curtis v. Howard

33 Fla. 251

Opinion

Maisky, J.:

In transitory actions under our system it is entirely clear that a defendant, a natural person, has the privilege of having the cause tried in the county of his residence, or in the county where the cause of action accrued. McDougal vs. Lea, 2 Fla., 532. This privilege or right exists, not because the court has no jurisdiction unless the defendant resides in the county where suit is ^brought, or the cause of action accrued there, for, as a general rule, whenever the court has jurisdiction of the subject-matter personal service on the defendant within its territorial jurisdiction will authorize a judicial determination of the cause. Personal actions against a defendant generally follow his person, and where process emanating from a court having jurisdiction of the subject-matter is personally served on him in the county where the suit is instituted, the court acquires jurisdiction of both the subject-matter and the person. The statute has, however, conferred upon a defendant, a natural person, the right or privilege of being sued either in the county of his residence or in the county where the cause of action accrued. McClellan’s Digest, page 811, sec. 5; Chapter 3721, laws of 1887. When sued in a personal action, of which the court has jurisdiction, in a county-other than the one in which he resides or the cause of action accrued, the cl efenclant can waive the privilege given him by the statute, and when he does not insist on it, a valid judgment can be rendered against him. Russ vs. Mitchell, 11 Fla., 80; Hall vs. Mobley, 13 Ga., 318. The proper way of objecting to the suit and insisting on the privilege given by the statute where the record does not show the residence of the defendant, or where the cause of action accrued, is by plea in abatement. Bucki vs. Cone, 25 Fla., 1, 6 South. Rep., 160; Kenney vs. Greer, 13 Ill., 432; s. c., 54 Am. Dec., 439.

Counsel for appellants contends that the replication in the cáse before us, to which the demurrer was sustained, shows that the cause of action accrued in Leon county where the suit was instituted, and, further, conceding this not to be the case, that the defendant has waived his privilege of being sued in the county of his residence. The replication alleges that plaintiffs provided materials and performed labor for defendant in Jackson county, and that an accounting was had between them in Gadsden county, when the sum of seventeen hundred dollars was found and admitted to be due plaintiffs, for which defendant gave an order on the banking firm of B. C. Lewis & Sons, doing business in Leon county, where the suit was instituted. It is not alleged that the order was given in Leon county. It is insisted that the cause of action accrued when the order was presented to B. C. Lewis & Sons in Leon county and payment was refused, and that it was not until then that plaintiffs could have sued. Ho claim is made that B. C. Lewis & Sons ever- accepted the order, and no question of their liability: on account of an acceptance is involved in the suit.. The fact is that the suit against Howard is not based; upon the order he gave in favor of plaintiffs on B. C., Lewis & Sons, but the action is for labor done and.';, materials furnished, for moneys had for use of plaintiffs, and on an account stated. The bill of particulars, filed with the declaration is a balance due on an ac-. count against the defendant. The replication shows that the only liability of defendant that could be re-, lied on in any way under the cause of action alleged, originated out of Leon county, and his residence inGradsden county is admitted. Without considering • whether or not the replication is a sufficient reply to > the plea in other respects, we think it does not show that the cause of action sued on accrued in Leon county.

Did the defendant waive his right to have the cause' tried in Gradsden county? It is insisted that he did, in. the first place, by appearing generally to the action.. By statute all distinction between appearance and trial terms of the Circuit Courts has been abolished, and a defendant is required to enter his or her appearance-on the return day of the summons, in which case he or she shall have until the next succeeding rule day to demur, plead or answer to the declaration. Sections 3'; and 6, Chapter 1938; McClellan’s Digest, page 821, secs. 34, 35. The 17th rule of practice of the Circuit Courts in common law actions is: “There being no-distinction between appearance and trial terms, pleas in abatement or other dilatory pleas, or any plea denying the signature of any defendant to any bond,, note or other instrument of writing, shall be filed within the same time as other pleas are required to be- ¿filed bv law, and be subject to the like rules in regard thereto.” The plea filed by defendant belongs to the class of dilatory pleas. (Russ vs. Mitchell, supra), and may be filed within the same time as other pleas are required to be filed, and subject to the like rules in ■ regard thereto. The appearance for defendant was entered on the 29th, day of March, 1889, plaintiffs’ declaration was filed on rule day in April following, and the plea was filed on the 16th day of that month. It is insisted that by a general appearance the defendant -submitted himself unreservedly to the jurisdiction of : the court and was bound thereafter to plead to the :■ merits of the cause. The court acquired jurisdiction ■ of the defendant by the service of the summons ad re~ ■ spondendwm, and the only question is, did the defend - • amt waive his right to plead in abatement by appear- . ing generally. A general appearance will undoubtedly waive all objections to the summons or its service, and, as we have already stated, the defendant may waive his privilege of being sued in the county of his residence, or in the county where the cause of action - accrued. But the record should shbw that the defend- • ant has had the opportunity of presenting, and has in some way waived his privilege under the statute, of being sued in his home county. If he appears and pleads to the merits, or if he fails to appear and plead at all, he is concluded by the judgment rendered against him, on the principle that he has waived his privilege of being sued in his home domicile. Where the facts as to his residence, or the accrual of the ■cause of action, do not appear properly upon the record, the defendant’s privilege has to be setup by plea in abatement, and such pleas, under the rule, can be filed within the same time, and subject to the same rules in regard thereto, as other pleas. A general ap pearance under the statute does not signify any purpose to waive the right to file any appropriate plea in the action authorized by law, or the rules of practice. The statute authorized the defendant to plead in abatement to the suit the matter set up in his plea, and it was filed within the time allowed for filing other pleas. Under our system of pleading and practice a defendant does not, in our judgment, waive the right to interpose such a plea by filing a general appearance. Under a statute of the United States providing that service of process shall made upon a defendant exclusively in the district in which he is an inhabitant, the practice seems to prevail in the Federal courts that notwithstanding the requirements of the statute as to service of process on the defendant in his •district, if served elsewhere, and he appears generally to the action, the court has jurisdiction of the person and can proceed with the cause, and the defendant’s appearance is considered a waiver of his right to object to the service of the precess. Consolidated Roller-Mill Co. vs. Coombs, 39 Fed. Rep., 25; Kelsey vs. Pennsylvania Railroad Co., 14 Blatchf., 89; Taylor vs. Longworth, 14 Pet., 172. Expressions may be found in several state decisions to the effect that by a general voluntary appearance all objections to the summons and return thereof, and to the jurisdiction of the court over the person of the defendant, are waived. Union Pacific Railway Co. vs. De Busk, 12 Col., 294; s. c. 13 Am. St. Rep., 221. Unquestionably a general appearance waives all objections to the summons, but the plea in abatement in the case before us does not set up want of jurisdiction in the court over the person of the defendant. The defense is the right of the defendant given by statute of being sued in the county of his residence, and there is nothing in the nature of a general appearance under our system to waive this-right. In some of the decisions the distinction between appearance and answering, or pleading to the-merits, is not observed, but they do not mean the same thing. Larrabee vs. Larrabee, 33 Maine, 100. Where-the defendant appears by pleading to the merits he, of course, consents to litigate in that court his rights, and will be bound by any judgment it may render. Adams vs. Lamar, 8 Ga., 83.

It is further insisted that defendant by entering into-the stipulation set out in the reification waived his right to be sued in Gadsden county, but we do not think such effect can be given to it. It indicates that B. C. Lewis & Sons held on deposit fordef endant more money than was sufficient to meet the damages claimed by plaintiffs in their declaration, and the stipulation is that all over the amount sued for might be paid to defendant. It was also agreed that the acceptance by plaintiffs of the $ 1,200 placed to their credit by B. C. Lewis & Sons, as the balance of an order drawn by defendant on the m in favor of plaintiffs, should not be-considered a waiver of their right to interest on their clai m if otherwise established. When or where established is not stated, and there is nothing in the stipulation indicating the consent of the defendant to litigate the merits - of- the case against him in Leon county.

Our conclusion is that the judgment appealed from, must be affirmed.