County of Okeechobee v. Florida National Bank (112 Fla. 309, 1933)

Buford, J.

Suit was filed by the appellants here, County of Okeechobee,- Florida, 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, Florida, against the Florida National Bank of Jacksonville, Jacksonville, Florida, and J. P. Cochrane, as Liquidator of the Peoples Bank of Okeechobee, Okeechobee, Florida.

The bill of complaint was bottomed on a tri-party trust agreement entered into between Florida National Bank of Jacksonville, the Peoples Bank of Okeechobee and the Board of County Commissioners of Okeechobee County, Florida, on the 10th day of April, 1927, in the following language, to-wit:

“This Agreement, entered into this 10th day of April, A. D. 1927, by and between Florida National Bank of Jacksonville, Florida, Peoples Bank of Okeechobee, Florida, and Board of County Commissioners of Okeechobee County, Florida, has for its purpose the following:

“In consideration of the loan to the Peoples Bank of Okeechobee by the Florida National Bank of Jacksonville of $300,000.00 of obligations of the United States of America, and other bonds as represented by Custodian’s Receipts Nos. 1424,- for $28,000, 4010 for $50,000, 4113 for $10,000, 4142 for $100,000, 4143 for $75,000, 4150 for $25,000 and 4151 for- $25,000, of the Jacksonville Branch of the Federal Reserve Bank of Atlanta, Georgia, assigned to the Board of County Commissioners of Okeechobee County, the Peoples Bank of Okeechobee has directed that the proceeds of the Okeechobee County Road No. 29 Bond Issue amounting to approximately $500,000.00 be deposited with the Florida National Bank of Jacksonville, in an account designated ‘Peoples Bank of Okeechobee.’ It is understood that the bonds referred to are to secure the aforesaid’ deposit and said funds so deposited are to be withdrawn from the Florida Bank of Jacksonville by the Peoples Bank of Okeechobee, or to be withdrawn by the County Commissioners of Okeechobee County, from the Peoples Bank of Okeechobee only upon surrender by the Board of County Commissioners of Okeechobee County, to the Florida National Bank of Jacksonville, through the Peoples Bank of Okeechobee of the Custodian’s Receipts in the following manner:

“None of said Custodian’s Receipts shall be released by-said Board of County Commissioners until the aforesaid deposit with the Florida National Bank of Jacksonville has been reduced, by withdrawals therefrom by the Peoples Bank of Okeechobee, to a sum equal to the face value of all said Custodian’s Receipts ($300,000.00). Thereafter the said Custodian’s Receipts shall be surrendered and released by the Board of County Commissioners of Okeechobee County, through the Peoples Bank of Okeechobee to the Florida National Bank of Jacksonville, in blocks of $50,000.00 face value. When the deposit described herein has been reduced .to $300,000.00, $50,000.00 of the Custodian’s Receipts shall be released. When the deposit has been reduced to $250,000.00, $50,000.00 of the Custodian’s Receipts shall be released. When the deposit has been reduced to $200,000.00, $50,000.00 of the Custodian’s Receipts shall be released. When the deposit has been reduced to .$150,000,00, $50,000.00 of the Custodian’s Receipts shall be released. When the deposit has been reduced to $100,000.00, $50,000.00 of the Custodian’s Receipts shall be released. When the deposit has been reduced to $50,000.00 the remainder of the Custodian’s Receipts shall be released as prescribed herein by the Board of County Commissioners of Okeechobee County to the Florida National Bank of Jacksonville through the Peoples Bank of Okeechobee.

“It is agreed between the parties hereto that the Custodian’s Receipts referred to herein shall be kept in vault for safekeeping, preferably in a lock box on which two keys are required to open, and it is further understood that in the event all, or any portion of said Custodian’s Receipts are lost or misappropriated by the officials to whom they are delivered by the Peoples Bank of Okeechobee then .the Florida National Bank of Jacksonville-shall deduct from the' said deposit a sum equivalent to the par value of such said. Custodian’s Receipts as are so lost or misappropriated.

“The Florida National Bank of Jacksonville,

“By G. J. Avant, Vice-Pres.

“Peoples Bank of Okeechobee,

“By D. R. McNeil, Pres.

.“Board of County Commissioners of Okeechobee County, Florida,

“By Ed Alderman, Chairman.

“Attest:

C. E. Simmons, Clerk.”

We deem it necessary .to set out. this agreement in full, because by its terms the Florida National Bank of Jacksonville and Peoples 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 ús..

- 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 Peoples 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 Peoples Bank 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 Peoples 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 U. S. C. A., Sec. 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 tri-party trust agreement with the Peoples 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. Peoples Bank of Okeechobee it thereby waived and estopped itself from claiming the privilege of venue accorded to it by the Federal statute 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 tri-party 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 a 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 Peoples Bank of Okeechobee was contracting in the county of its domicile. Section 2582 R. G. S., 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. 158; Baker & Holmes Co. v. Indian River State Bank, 61 Fla. 106, 55 Sou. 826.

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 Peoples Bank of Okeechobee or its Liquidator cannot claim the privilege of venue because it had estopped itself from asserting such claim by the terms of its contract.

Sec. 2580 R. G. S., 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 which any defendant resides and it is this provision of the statute which both the defendants i'n this case were charged with notice of at the time they entered into this contract and by entering into the contract they included the provision of the statute as effectually as if the same had been written into the contract itself. If this be not true, then the complainant below'in this case, the appellant here, can never enforce its legal rights fob the alleged breach of the contract. Both banks are necessary parties to the suit. The suit could not be maintained against one under the allegations of this bill of complaint without the other being joined in that suit and if the Florida National Bank of Jacksonville may not be sued upon its joint contract in Okeechobee County and Peoples Bank of Okeechobee cannot be sued on its joint contract in Duval County, then there is no jurisdiction in which the complainant may maintain its suit. Therefore, we think that the judgment below should be reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed.

Davis, C. J., and Whitfield and Ellis, J. J., concur.

Terrell and Brown, J. J., dissent.

Terrell, J.

(dissenting). — Appellants, as complainants, filed their bill of complaint in the Circuit Court of Okeechobee County naming appellees, The Florida National Bank and J. P. Cochrane, as liquidator of the Peoples Bank of Okeechobee, as defendants. Both defendants entered their general appearance to the bill. In due course the Florida National Bank moved to dismiss on the ground of its privilege to be sued only in the county in which it is located, to-wit: Duval County. The motion to dismiss was granted to the Florida National Bank. The present appeal is from that decree.

It is first contended that the Florida National Bank waived its right to be sued in Duval County when it entered its general appearance to the bill.

A general appearance is the means whereby the defendant submits himself unconditionally to the jurisdiction of the -court, while a special appearance has reference to the means by which the defendant submits himself conditionally to-the jurisdiction of the court for the purpose of testing the sufficiency of the summons or service made on him for that purpose. This rule as to special appearance has been expended. Rorick v. Stillwell, 101 Fla. 4, 133 So. 609.

The right to be sued in Duval, the county of its location, was alright accorded the defendant under the law and was properly raised by a plea of privilege. It is the settled rule in the Federal courts and in some state jurisdictions that the defendant’s right to challenge the venue is waived by entering a general appearance. General Investment Company v. Lake Shores and M. R. S. R. Co., 260 U. S. 261, 67 Law Ed. 244, 43 Sup. Ct. 106, Cyclopedia of Federal Procedure; Vol. 2, Sec. 388, pages 397, 398. A different rule prevails in this jurisdiction. Here the defendant may subsequent to general appearance tender his plea of privilege as to venue unless- that right is expressly or impliedly waived by trial on the merits, or by default in -pleading after appearance or. when a general demurrer to the merits is filed and overruled or by other appropriate .action, after which the court has power to enter judgment. Payne v. Ivey, 83 Fla. 436, 93 Sou. 143. In other words, a plea of privilege is a species of plea in abatement and is not a denial of the jurisdiction of the court over the person of the defendant. The filing of a plea to the merits with a plea of privilege is not a waiver of the latter in the absence of anything in the record to so indicate. E. O, Painter Fertz. Co. v. DuPont, 54 Fla. 288, 45 Sou. 507; Nettles v. Gulf Fertz. Co., 78 Fla. 490, 83 Sou. 298; Payne v. Ivey, supra.

The general appearance brought in question was in the usual form and was accompanied with no suggestion of waiver of privilege, nor of plea to the merits. This Court has repeatedly held that under such circumstances the defendant, in a transitory or personal action at common law may after the filing, of his general appearance interpose a plea of privilege to the venue. Curtis v. Howard, 33 Fla. 251, 14 Sou. 812; E. O. Painter Fertz Co. v. DuPont, supra. Payne v. Ivey, supra. The same rule prevails in chancery. Russell v. Russell, 86 Fla. 15, 96 So. 288, Sec. 3105 R. G. S. of 1920, Section 4889 C. G. L of 1927.

But it is contended that since the privilege claimed is one