In January, 1938, H.E. Boyd brought a common law action against S.E. Teague on certain promissory notes alleged to have been executed by the latter. A demurrer to the declaration was overruled and the defendant entered a plea of privilege claiming the right to be sued in Franklin County where the notes were executed and where the cause of action accrued.
A demurrer and motion to strike the plea of privilege were interposed. The demurrer and the motion to strike were grounded on the charge that the plea of privilege was waived when the demurrer to the declaration was filed and overruled. At this state of the cause, Teague applied to this Court for writ of prohibition. A rule nisi was directed to the Circuit Court of Manatee County commanding him to show cause why he should not be prohibited from entering any further orders, judgments, or decrees in the common-law action. The cause now comes on to be heard on the motion to quash the rule nisi.
The question to be adjudicated might be stated differently but for simplicity, we will state it as follows: Did the Circuit Court of Manatee County have jurisdiction of the subject matter and the parties to the common law action?
The answer to this question turns on the interpretation to Section 1, Chapter 17134, Acts of 1935, as follows:
"That all promissory notes, negotiable or non-negotiable, the payment of which is not secured by a mortgage or pledge of real or personal property, shall conclusively be *Page 876 deemed to have been completely executed, delivered and accepted in the county, or justice-of-peace district, in which actually signed and the maker resides, or in any county, or justice-of-peace district, in which actually signed by one or more of several makers, or one or more of several makers resides or reside, regardless of the county, or justice-of-peace district, in which such instrument might be accepted or approved by the payee, and regardless of any stipulation in such instrument as to the place of payment; and the cause of action thereon shall also conclusively be determined to have arisen, and suit thereon shall be brought, only in the county, or justice-of-peace district, in which such instrument was actually signed by the maker, or one of several makers, or in which the makers reside, or one or more of several makers resides or reside; and where suit is brought on any such instrument, that was signed by the makers thereof in more than one county, or justice-of-peace district, or in any county, or justice-of-peace district, in which it was actually signed and "delivered, whether by one maker, or one or more of several makers, whether by all of them or not, in any county, or justice-of-peace district, in which a signer resides, or several signers reside, no suit shall ever be brought thereon in any other county, or justice-of-peace district."
Respondent contends that the law so quoted applies only to promissory notes not secured by mortgage or other pledge and that the notes sued on having been so secured, the statute has no application to them. It is further contended that petitioner waived his plea of privilege when he filed a general demurrer to the declaration and not only that but he has confused the question of privilege with that of lack of jurisdiction.
If the notes as secured had been relied on for recovery, and suit to foreclose had been brought, this contention *Page 877 would be true but here the plaintiff abandoned his security, as he had a right to do, and elected to sue at law on the open notes. He had a right to pursue either of these courses but when he elects to follow one, he is barred from the other. When he abandoned his security, he instituted a common law action. The notes were in legal effect unsecured and were covered by the Act as here quoted.
It is admitted that the notes in question were executed, delivered, and accepted in Franklin County. Jurisdiction to recover on their in a common law action was in that event under the Act as quoted laid to Franklin County. There was accordingly no basis for the action in Manatee County. The title to Chapter 17134, Acts of 1935, supports this conclusion and is as follows:
"AN ACT Determining and Declaring where Certain Written Instruments Are Executed, Causes of Action Arise, and Suits Thereon Shall Be Brought."
The motion to quash is therefore overruled.
It is so ordered.
WHITFIELD, BUFORD and CHAPMAN, J. J., concur.
THOMAS, J., dissents.
Justice BROWN not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.