Appellants, as complainants, filed their bill of complaint in the Circuit Court of Okeechobee County naming appellees, The Florida National Bank and J. P. Cochrane, as liquidator of the Peoples Bank of Okeechobee, as defendants. Both defendants entered their general appearance to the bill. In due course the Florida National Bank moved to dismiss on the ground of its privilege to be sued only in the county in which it is located, to-wit: Duval County. The motion to dismiss was granted to the Florida National Bank. The present appeal is from that decree.
It is first contended that the Florida National Bank waived its right to be sued in Duval County when it entered its general appearance to the bill.
A general appearance is the means whereby the defendant submits himself unconditionally to the jurisdiction of the *Page 316 court, while a special appearance has reference to the means by which the defendant submits himself conditionally to the jurisdiction of the court for the purpose of testing the sufficiency of the summons or service made on him for that purpose. This rule as to special appearance has been extended. Rorick v. Stillwell, 101 Fla. 4, 133 So. 2d 609.
The right to be sued in Duval, the county of its location, was a right accorded the defendant under the law and was properly raised by a plea of privilege. It is the settled rule in the Federal courts and in some state jurisdictions that the defendant's right to challenge the venue is waived by entering a general appearance. General Investment Company v. Lake Shores and M.R.S. R. Co., 260 U.S. 261, 67 Law Ed. 244,43 Sup. Ct. 106, Cyclopedia of Federal Procedure, Vol. 2, Sec. 388, pages 397, 398. A different rule prevails in this jurisdiction. Here the defendant may subsequent to general appearance tender his plea of privilege as to venue unless that right is expressly or impliedly waived by trial on the merits, or by default in pleading after appearance or when a general demurrer to the merits is filed and overruled or by other appropriate action, after which the court has power to enter judgment. Payne v. Ivey, 83 Fla. 436, 93 So. 143. In other words, a plea of privilege is a species of plea in abatement and is not a denial of the jurisdiction of the court over the person of the defendant. The filing of a plea to the merits with a plea of privilege is not a waiver of the latter in the absence of anything in the record to so indicate. E. O. Painter Fertz. Co. v. DuPont, 54 Fla. 288, 45 So. 507; Nettles v. Gulf Fertz. Co., 78 Fla. 490, 83 So. 298; Payne v. Ivey, supra.
The general appearance brought in question was in the usual form and was accompanied with no suggestion of waiver of privilege, nor of plea to the merits. This Court *Page 317 has repeatedly held that under such circumstances the defendant in a transitory or personal action at common law may after the filing of his general appearance interpose a plea of privilege to the venue. Curtis v. Howard, 33 Fla. 251, 14 So. 812; E. O. Painter Fertz Co. v. DuPont, supra. Payne v. Ivey, supra. The same rule prevails in chancery. Russell v. Russell, 86 Fla. 15,96 So. 2d 288, Sec. 3105 R. G. S. of 1920, Section 4889 C. G. L of 1927.
But it is contended that since the privilege claimed is one of Federal origin the rule of the Federal courts should apply. If suit had been brought in the Federal court this contention would require an affirmative answer, but the rule seems well settled that where a claim of right under a Federal statute is invoked in a state court all matters of practice and procedure are controlled by the law of the forum. Minn. St. Louis R. Co. v. Bombolis, 241 U.S. 211, 60 Law Ed. 961,36 Sup. Ct. Rep. 599; Illinois Central R. Co. v. Johnson, 254 U.S. 654,41 Sup. Ct. 218, 65 Law Ed. 459; St. Louis-San Francisco R. Co. v. Glow Electric Co., 35 Ohio App. 291, 172 N.E. 425; Davis v. Wechsler, 263 U.S. 22, 44 Sup. Ct. 13, 68 Law Ed. 143; Lee v. Central of Georgia R. Co., 252 U.S. 109, 40 Sup. Ct. 254,64 Law Ed. 482.
We are next confronted with the question of whether or not12 U.S.C.A., Section 94, according national banks the privilege of being sued only in the county or district in which they are located, has been repealed.
It would seem unnecessary to discuss the question of whether or not 12 U.S.C.A., Section 94, actually granted this privilege when enacted. The Supreme Court of the United States and others have repeatedly held that the privilege of being sued only in the courts of the county or district in which a national bank is located is personal to the bank which it may claim or waive as it deems meet. *Page 318 First National Bank of Charlotte v. Morgan, 132 U.S. 141,10 Sup. Ct. 37, 33 Law Ed. 282; Crocker v. Marine National Bank of New York, 101 Mass. 240, 3 Am. Rep. 336; First National Bank of Bethel v. National Pahquioque Bank, 14 Wall. (81 U.S. 383)20 Law Ed. 840; Raiola v. Los Angeles First National Trust Savings Bank, 233 N.Y. S. 301, 133 Misc. Rep. 630.
The instant suit was brought in Okeechobee County pursuant to Section 2580 R. G. S. of 1920, Section 4220 C. G. L. of 1927, which in effect provides that suits instituted against defendants living in different counties may be brought in a county where any defendant resides. If 12 U.S.C.A., Section 94, has been repealed this procedure was correct because the defendant, J. P. Cochrane, as liquidator of the Peoples Bank of Okeechobee, resided in Okeechobee County. If, however,12 U.S.C.A., Section 94, has not been repealed, being the Federal law, it is the dominant authority and must govern.
12 U.S.C.A., Section 94, is as follows:
"Sec. 94. VENUE OF SUITS. 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 any County or city in which said association is located having jurisdiction in similar cases. (R. S. Sec. 5198; Feb. 18, 1875, c. 80, Sec. 1, 18 Stat. 320.)"
The quoted statute was originally Sec. 57 of the Acts of Congress June 3, 1864. It was not included in the U.S. Revised Statutes of 1873, but was re-enacted by Congress in 1875 and is now Section 5198, Second Edition, Revised Statutes of 1875, Vol. 5 Federal Statutes Ann. of 1930, pages 133 and 196. See also Section 9759 U.S. Compiled Statutes (1918) page 1577; Sec. 94, Title 12, *Page 319 United States Code (1926) and Section 94, Title 12; West Publishing Company 1928 Revision of United States Code.
Appellee contends that 12 U.S.C.A., Section 94, is still in force and controls here while appellant contends that it has been repealed or modified by the Act of Congress of July 12, 1882, being Section 4, Chapter 290, 22 U.S. Statutes at Large, 163, which was in turn repealed or modified by Section 4 of the Act of Congress of August 13, 1888, being Section 785 Barnes Federal Code, 1919, subd. 16, 28 U.S.C.S. Section 41 (16) the pertinent parts of which are as follows:
"Section 4, Act of July 12, 1882 * * *. Provided, however, that the jurisdiction for suits hereafter brought by or against any association established under any law providing for national banking associations, except suits between them and the United States, or its officers and agent, shall be the same as, and not other than, the jurisdiction for suits by or against banks not organized under any law of the United States which do or might do banking business where such national-banking associations may be doing business when such suits may be begun: And all laws and parts of laws of the United States inconsistent with this proviso be, and the same is hereby repealed."
"Section 4, Acts of August 13, 1888. That all national banking associations established under the laws of the United States shall, for the purposes of all actions by or against them, real, personal, or mixed, and all suits in equity, be deemed citizens of the states in which they are respectively located; and in such cases the circuit and district courts shall not have jurisdiction other than such as they would have in cases between individual citizens of the same State.
"The provisions of this section shall not be held to affect the jurisdiction of the courts of the United States in cases *Page 320 commenced by the United States or by direction of any officer thereof, or cases for winding up the affairs of any such bank."
The Act in question (12 U.S.C.A. Sec. 94) was originally Section 59, Chapter 58, of the Act of February 25, 1863, 12 Stat. at L. 681, which restricted the venue of actions or suits by or against national banks to any "Circuit, District, or Territorial Court of the United States held within the District" in which said bank is located. Cadle v. Tracey, 11 Blatchf, 101, 4 Fed. Cases 967.
The Act of February 25, 1863, was amended by Section 57, Chapter 106, of the Act of June 3, 1864, 13 Stat. at L. 116 by extending the venue of causes by or against national banks to "any state, county or municipal court in the county or city" in which said bank is located having jurisdiction in similar cases. The Act of 1864 covered the same subject matter as Section 59, Chapter 58, Act of February 25, 1863, and Section 62 of the Act of 1864, was an express repeal of the Act of 1863. Cadle v. Tracey, supra.
In the Revised Statutes of the United States adopted December 1, 1873, that portion of Section 57 of the Act of 1864 relating to the venue of state courts over national banks was omitted, but it was restored by the Act of Congress of February 18, 1875, being "an Act to correct errors and supply omissions in the Revised Statutes of the United States." (Section 1, Chapter 80, 18 Stat. at L. 320). First National Bank of Charlotte, N.C., v. Morgan, 132 U.S. 141, 33 L. Ed. 283.
On March 3, 1875, Congress enacted Chapter 137, 18 Stat. at L. 470, being "an Act to determine the jurisdiction of Circuit Courts of the United States, and to regulate the removal of causes from state courts and for other purposes." This Act provides for the removal of causes against national banks on the sole ground of Federal origin *Page 321 while the Act of February 18, 1875, relates to the venue of suits or actions against national banks. The latter Act has not been materially changed since its enactment, while the Act of March 3, 1875, has been several times amended. The Act of March 3, 1875, apparently had no effect on the Act of February 18, 1875. Leather Mfg. National Bank v. Cooper, 120 U.S. 778,7 Sup. Ct. 777, 30 Law Ed. 816; Petri v. Commercial Bank of Chicago, 142 U.S. 644, 12 Sup. Ct. 325, 35 Law Ed. 1144.
The Act of March 3, 1875, as applied to national banks, was repealed by the Act of July 12, 1882, 22 Stat. at L. 163, which was an Act to enable national banking associations to extend their corporate existence and for other purposes, the pertinent part of which is quoted, supra. The Act of July 12, 1882, relates solely to the jurisdiction of Federal courts and makes no reference to venue. It took from national banks the right to remove causes from state to Federal courts on the sole ground of Federal origin as provided by the Act of March 3, 1875, relating to the venue of such causes. Leather Mfg. National Bank v. Cooper, supra; Whittemore v. Amoskeag National Bank,134 U.S. 527, 10 Sup. Ct. 592, 33 Law Ed. 1002.
The Act of July 12, 1882, was repealed by the Act of August 13, 1888, Chapter 866, 25 Stat. at L. 436, Section 4, of which is quoted, supra. The Act of August 13, 1888, was enacted' for the sole purpose of correcting errors and omissions in the Act of March 3, 1887, Chapter 373, 24 Stat. at L. 552. The Act of March 3, 1875, the Act of July 12, 1882, and the Act of August 13, 1888, all relate to the same subject matter which is unrelated to the subject matter of the Act of February 18, 1875. Ex. Parte Jones, 164 U.S. 691, 17 Sup. Ct. 222,41 Law Ed. 601. Continental National Bank of Memphis v. C. G. Buford,191 U.S. 119, 24 Sup. Ct. 54, Petri v. Commercial National Bank of *Page 322 Chicago, supra. The net result of the holding in these cases, as applied to the instant case is that the Act of March 3, 1875, enabled national banks to invoke the jurisdiction of Federal courts on the sole ground of Federal origin and that said privilege was withdrawn from them by the Act of July 12, 1882, as amended by the Act of August 13, 1888, that "no other purpose can be imputed to Congress than to effect that result" and that if this is correct the Act of February 18, 1875, was not affected by said legislation.
Our review of these enactments also reveals that the Acts of March 3, 1875, July 12, 1882, and August 13, 1888, have appeared in various codes and revisions, but at all times relating to the jurisdiction of Federal courts, while the Act of February 18, 1875, has as often appeared in the codes and revisions, but always relating to the venue of actions against national banks. In fine, it seems clear that each Act performs a different function with reference to national banks, that each has a distinct field of operation and since there is not shown to be a direct repeal of the Act of February 18, 1875, we must decline to hold that it has been repealed by implication.
This view is supported by the fact that 12 U.S.C.A., Section 94, was referred to as an existing statute by Mr. Justice BRANDEIS in Bank of America v. Whitney Central National Bank, 261 U.S. 171, 43 Sup. Ct. 311,67 Law Ed. 594, and by Mr. Justice VANDEVANTER in First National Bank of Bay City v. Fellows, ex rel., Union Trust Company, 244 U.S. 416,37 Sup. Ct. 734, 61 Law Ed. 1233. This view is further supported by the fact that the Acts of March 3, 1875, July 12, 1882, and August 13, 1888, take their final form in the judicial code of 1911 as Section 24 (16) Chapter 231, 26 Stat. at L. 1092, and again in28 U.S.C.A., Section 41 (16), in same form as in judicial code of 1911. See Herrmann v. Edwards, 238 U.S. 107, *Page 323 35 Sup. Ct. 839, 59 Law Ed. 1224, for discussion of these statutes.
We are also reminded that the Act of 1864 as re-enacted February 18, 1875, now 12 U.S.C.A., Section 94, appeared in the U.S. Code of 1925 which was adopted by an Act of Congress. This fact creates a presumption that the statute is valid and an existing law of the United States which will not give way unless rebutted by competent authority.
Considered in its superlative aspect, the most that can be said of the Act of July 12, 1882, and the Act of August 13, 1888, is that the former provides that the jurisdiction of suits brought against national banks shall be the same as that against banks not organized under Federal law, while the latter provides that for the purpose of actions against them national banks shall be deemed citizens of the state in which they are located. Privilege to be sued in the county where located is a matter of substantive law. It certainly could not be successfully contended that a right of this character would be withdrawn by the Act of August 13, 1888, making national banks citizens of the state where located nor can we imply its withdrawal by the Act of July 12, 1882, fixing jurisdiction for suits against national banks the same as for suits against state banks.
Venue has reference solely to the neighborhood, place or county in which an incident takes, place or where a cause of action may be deemed to have accrued, while jurisdiction goes to the power lodged in a court, as distinguished from other governmental agencies, to hear and determine causes and to execute its mandates. The Legislature cannot prescribe the manner in which jurisdiction may be exercised, but it may prescribe the place or venue of its exercise, as was accomplished by the Act of February 18, 1875, which we hold was not repealed by the Act of July 12, 1882, relating to jurisdiction. *Page 324
As ground for reversal appellant relies on the decision of this Court in Davis, et al., v. The American National Bank of Winter Haven, decided December 21, 1931. The answer to this contention is that petition for rehearing was duly filed in this cause and pending its disposition the case was by agreement of the parties dismissed. The decision relied on was, therefore, not published and is not the law of the case.
We have examined Leviton v. Houghton National Bank, 174 Mich. 566, 140 N.W. 1019; Guerra v. Lemburg (Tex.Civ.App.) 22 S.W.2d 336; Freeman Manufacturing Company v. National Bank,160 Mass. 398, 35 N.E. 865, and other cases of like import. The Massachusetts case referred to but did not adjudicate the question raised here. The Michigan and Texas cases disposed of the question similar to that raised here on the thesis that the Federal law providing that jurisdiction of suits against national banks should be the same as that against state banks, repealed the venue provision of the Act of February 18, 1875. This holding vanishes the distinction between jurisdiction and venue, comprehends the latter in the former and repeals by implication a substantive right with a mere mandatory Act that was not intended as a revision of the entire subject matter.
A statute defining jurisdiction may or may not comprehend venue. In our view it should not go to the extent of withdrawing a substantive right by implication only when every reason for conferring that right exists now that existed at the time it was conferred and there still exists a field of operation for both Acts brought in question. First National Bank of Charlotte v. Morgan, supra, suggests these reasons.
In this situation it follows that the Act of February 18, 1875, is still in effect. It has not been shown that the *Page 325 Florida National Bank waived its privilege to be sued in Duval County, secured thereby.
BROWN, J., concurs.
ON REHEARING