COMMERCIAL CARRIER CORPORATION, A CORPORATION, AND CLAY HYDER TRUCKING LINES, A NORTH CAROLINA CORPORATION, APPELLANTS,
v.
LEVADA MERCER, AS EXECUTRIX OF THE ESTATE OF G. B. NICHOLS, DECEASED, APPELLEE
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The court held that the venue statute applies only when defendants reside in truly different counties, not when all defendants share residence in at least one county.
Appellant corporations, sued in Hillsborough County, filed a plea of privilege asserting improper venue. One corporation resided in both Hillsborough …
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Appellant corporations were defendants in a negligence action brought by appellee in Hillsborough County. Their plea of privilege on venue was denied and they bring this interlocutory appeal. The cause of action arose in South Carolina, so sittis is not relevant to the venue question here. The question is whether the defendants reside in “different” counties within the purview of § 47.021, F.S.A.
We must first look to § 47.051, F.S.A. which sets forth where corporations “reside” for purposes of venue. Pursuant to this section, appellant Commercial Carrier Corporation “resides” in both Hills-borough and Polk Counties; its codefend-ant Clay Hyder Trucking Lines, however, “resides” only in Polk County. Thus each “resides” in Polk County, although Commercial Carrier Corporation also “resides” elsewhere.
Now, § 47.021, F.S.A. provides that:
“Actions against two or more defendants residing in different counties or districts may be brought in any county or district in which any 'defendant resides.” (Italics supplied).
It is clear, of course, that this section applies only when codefendants reside in “different” counties.1 But when all defendants to an action enjoy mutual residence within one county, the section does not apply even though, as here, one or more corporate codefendants may also “reside” in other counties.
We therefore hold that § 47.021, F.S.A. does not apply to the factual situation here and that the action should have been filed in Polk County within the purview of § 47.011, F.S.A. The trial court’s denial of the plea of privilege was therefore error.
Reversed.
PIERCE, Acting C. J., concurs.
MANN, J., concurs in conclusion.
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Walt Disney World Co. & Ins. Co. of N. Am. v. Leff, 323 So. 2d 602 (Fla. 4th DCA 1975)…l, and, if the plaintiff would claim such right, he must bring himself within the terms of the exception.’ Brady v. Times-Mirror Co., 106 Cal. 56, 39 P. 209, 210.” (e. s.) The same rationale was employed in Commercial Carrier Corporation v. Mercer, 226 So. 2d 270 (2nd DCAFla.1969), whose facts are nearly on all fours with those at bar. There, the defendants were both corporations called upon to defend an action brought in Hillsborough County. One defendant “resided” in both Hillsborough and Polk Counties; th…
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Valjean Corp., Inc. v. Heininger, 559 So. 2d 677 (Fla. 3d DCA 1990)…only be brought, at the plaintiffs option, either (a) where the cause of action accrued, namely, Hillsborough County, or (b) where the defendant Valjean and a co-defendant mutually reside, namely, Brevard County. Commercial Carrier Corp. v. Mercer, 226 So. 2d 270, 271 (Fla. 2d DCA 1969); §§ 47.-021, 47.051, Fla.Stat. (1987). Second, the defendant Valjean did not, as urged, waive its defense of improper venue by filing a motion to dismiss and answer (neither of which raised improper venue) as the subject mo…
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Allen v. Summers, 273 So. 2d 13 (Fla. 3d DCA 1973)
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- Miller v. Miller, 96 So. 2d 538 (Fla. 1957)