DONALD O. BEAL AND ALICE BEAL, HIS WIFE, APPELLANTS,
v.
THIRD NATIONAL BANK, ETC., ET AL., APPELLEES
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The court held that the defendant bank did not waive its venue rights under 12 U.S.C. § 94 by filing a motion to dismiss on other grounds prior to asserting the venue defense.
Plaintiffs appealed an order dismissing their amended complaint against a bank. The bank moved to dismiss based on federal venue provisions, arguing i…
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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.
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Tampa Assocs., Ltd. v. Miami Elevator Co., 545 So. 2d 458 (Fla. 3d DCA 1989)…erved below. Fla.R.Civ.P. 1.140(b) (“No defense or objection is waived by being joined with other defenses or objections in a responsive pleading or motion ”); Vann v. First Nat’l Bank, 324 So. 2d 94 (Fla. 3d DCA 1975); see Beal v. Third Nat’l Bank, 350 So. 2d 840 (Fla. 1st DCA 1977); Fla.R. Civ.P. 1.190(a), (c) (amendment as of right before responsive pleading relates back to original); see also Jonnet v. Dollar Savs. Bank, 530 F. 2d 1123, 1125 n. 5 (3d Cir.1976). Since an impropriety of service ipso fac-t…
Authorities Cited
- Mercantile Nat'l Bank at Dallas v. Langdeau, 371 U.S. 555 (U.S. 1963)
- Mich. Nat'l Bank v. Robertson et ux., 372 U.S. 591 (U.S. 1963)
- Vann v. First Nat'l Bank IN Little Rock, 324 So. 2d 94 (Fla. 3d DCA 1975)