Opinion
No. 61-341.
October 9, 1961.
Appeal from the Circuit Court, Dade County, Hal P. Dekle, J.
Richard W. Ervin, Atty. Gen., and Joseph Nesbitt, Asst. Atty. Gen., for appellant.
Gus Efthimiou, Jr., Miami, for appellees.
Before HORTON, BARKDULL and HENDRY, JJ.
Respondent below seeks review of an order denying his motion to dismiss for improper venue. The petitioner brought suit in Dade County seeking review of an administrative ruling of the state comptroller made pursuant to § 212.15(4), Fla. Stat., F.S.A. The respondent comptroller asserted his right to be sued in Leon County. The complaint alleged, inter alia, that respondent had threatened to seize and sell petitioner's property to satisfy a tax allegedly due. There was no allegation, nor does it appear from the record, that respondent actually initiated action to seize and sell property in Dade County or took such action as would amount to a waiver of his venue privilege.
It has been held that suits against the comptroller to test the legality of taxes can be maintained against him only in Leon County "unless he waived the privilege or unless some attempt to seize and sell property * * * has been actually initiated in the county where the suit is brought." Henderson v. Gay, Fla. 1950, 49 So.2d 325, 327, and numerous cases cited therein.
It follows that the order denying appellant's motion to dismiss was error. The order appealed is reversed and the cause remanded for further proceedings not inconsistent herewith.
Reversed and remanded.