Opinion
October 21, 1952. Rehearing Denied November 14, 1952.
Joseph M. Glickstein, Jr., and A.M. Crabtree, Jr., Jacksonville, for relator.
A.K. Black, Lake City, for respondent.
In this cause a writ of habeas corpus was granted, pursuant to a petition therefor by relator, filed September 9, 1952. A return has been filed by the respondent in which it is shown that at the time of the issuance of the writ he was holding the relator in custody under and by virtue of a certain order made by the Honorable R.H. Rowe, one of the Circuit Judges of the Third Judicial Circuit in and for Columbia County, Florida, on the 4th day of September, 1952, and that at the time he filed the return, he was also holding the relator "in technical custody, the defendant having been admitted to bail * * * by your Honorable Body", under and by virtue of an order dated the 11th day of September, 1952. Copies of each of said orders were attached to the return of the respondent.
The first order above mentioned is as follows:
"It having been made to appear to the undersigned that the defendant, F.A. Todd, is in default in payment of certain sums heretofore ordered paid by this Court and whereas this Court had heretofore directed that the said F.A. Todd appear before the undersigned and show cause, if any he could, why he should not be required to show cause why he should not be held in contempt of Court and whereas his counsel of record was duly notified that the defendant would be personally required to be present before this Court at 10:00 A.M. on Monday, August 25, 1952, and whereas due notice was given that application would be made to the undersigned at 10:00 A.M. September 2, 1952, for an Order of Attachment and whereas nothing has been shown to the Court why said order should not be granted
"Therefore it is considered, adjudged and decreed that an Attachment Order be and the same is hereby issued and all and singular the Sheriffs of the State of Florida are hereby required and directed to immediately arrest and take into their custody the defendant, F.A. Todd, and surrender him to the Sheriff of Columbia County, Florida, to be by him held in custody until further directed to have and produce the said F.A. Todd before the undersigned to be dealt with as provided by law.
"Done and ordered at Madison, Florida, this the 4th day of September, A.D. 1952."
The second order above mentioned is as follows:
"This matter came on this date upon the application of the plaintiff, Pearl Robarts Todd, for the entry of an order adjudging the defendant, F.A. Todd, in contempt of Court and a rule nisi and such other relief as the Court deems appropriate and the Court having heard the evidence that the payments heretofore ordered paid had not been paid, having examined the file in this case and it appearing to the Court the defendant personally and by and through his attorney had been duly notified to show cause before this Court at the hour of 10:00 A.M. on Monday, August 18, 1952, and also at the hour of 10:00 A.M. on Monday, August 25, 1952, why he should not be adjudged in contempt for such failure and that said defendant failed, refused or neglected to appear at the time and place then fixed and it appearing to this Court that the defendant has flagrantly ignored the orders of this Court, it is thereupon
"Considered, Adjudged and Decreed as follows:
"1. That the defendant, F.A. Todd, is in contempt of this Court for failure to make said payments.
"2. That all and singular the Sheriffs of the State of Florida be and they are hereby required to arrest and take into custody the said F.A. Todd and the Honorable Ralph Witt, Sheriff of Columbia County, Florida, is hereby directed upon receiving the said F.A. Todd, to bring him before the Court instanter at the Columbia County Courthouse, Lake City, Florida, for imposition of sentence as a result of the above adjudication of guilt of contempt.
"Done and Ordered upon the 11th day of September, A.D. 1952, at Jasper, Florida."
In the petition for the writ of habeas corpus and in the brief filed by the relator after the return of the respondent it is urged that the Court was without jurisdiction to enter either of the orders. The basis of the contention is that the suit was filed by the wife of the relator in Columbia County at a time when the relator was a resident of Duval County and process was served upon him in Brevard County. The suit filed in Columbia County was for separate maintenance and for the support of a minor child, suit money, costs and attorney's fees.
The relator contends that the "Court failed to acquire jurisdiction over the person of the relator because the service of process was a nullity and absolutely void."
The record shows that an affidavit of good faith was filed in the cause and that the minor child was in Columbia County at the time the suit was instituted. A hearing was had pursuant to notice before the Chancellor on the faculties, the defendant appeared by his counsel of record, who moved, ore tenus, to dismiss the bill of complaint on the ground of improper venue. Later relator filed an answer again urging improper venue. The attorney for the respondent filed motions from time to time for orders extending time for taking testimony, and the relator by his attorney objected to such extensions of time.
It is apparent that the relator has confused the question of a change of venue with that of privilege. Both questions are covered by the Statutes. Relator undoubtedly had the right to file a plea to the jurisdiction, or in abatement, as provided for by Section 52.10, F.S.A. He failed to do this. A plea of privilege may be waived. See Edmundson v. Edmundson, 133 Fla. 703, 182 So. 824; Evans v. Evans, 141 Fla. 860, 194 So. 215. No plea of privilege was filed, hence the right to do so or to insist upon such privilege was waived.
An application for change of venue is entirely different from the plea of privilege. The question of the application for change of venue is covered by Section 53.03, F.S.A., and sets forth with great particularity what the application must contain. The application must be on oath, stating that the applicant fears he will not receive a fair trial in the court where the suit is pending, first on account of adverse party having an undue influence over the minds of the inhabitants of the county or justice district, or second, on account of applicant being so odious to the inhabitants of the county or justice district that he could not receive a fair trial. No such motion was filed in this case.
It is the judgment and order of the Court that the writ heretofore issued be and the same is hereby quashed, and that the relator, F.A. Todd, be and he is hereby remanded to the respondent, Ralph Paul Witt, Sheriff in and for Columbia County, Florida, and that he produce said relator, F.A. Todd, before the Chancellor within five days from the date hereof for further proceedings.
SEBRING, C.J., and HOBSON and ROBERTS, JJ., concur.
On Petition for Rehearing.
Relator complains that Section 52.10, F.S.A., relating to pleas of privilege to the jurisdiction, was repealed by Chapter 26962, Laws of Florida 1951, effective June 11, 1951. This is true. However, the petition for certiorari in this case filed by the relator shows that the suit was instituted on February 27, 1951, summons was served March 7, 1951, and motion to dismiss was filed on the ground of improper venue, ore tenus, on March 16, 1951. An answer was filed on the 26th of March, 1951, which contained a formal motion to dismiss on the grounds of improper venue, which motion was dismissed by order of the Court, dated the 18th day of May, 1951. Between these dates, the relator, pursuant to notice, appeared before the Chancellor and took part in a hearing on the faculties, and otherwise actively participated in the case before June 11, 1951, the effective date of Chapter 26962, Laws of Florida 1951, and at a time when Section 52.10, F.S.A., was in full force and effect.
Petition for rehearing be and the same is hereby denied.
SEBRING, C.J., and HOBSON and ROBERTS, JJ., concur.