
    FLORIDA NURSERY & LANDSCAPE CO. v. PICKARD.
    Circuit Court, Lake County.
    September 24, 1953.
    H. L. Pringle, Leesburg, for plaintiff.
    Schofield & Fitzpatrick, Inverness, for defendant.
   T. G. FUTCH, Circuit Judge.

This is a common law action, based on open account. Plaintiff is shown by the complaint to be a corporation having its place of business at or near Leesburg in Lake County. Defendant is shown by the pleadings to be a resident of Citrus County.

The defenses filed by the defendant are made up of three separate defenses, and a counterclaim. The first defense is what was, before the advent of our present rules, “a plea of privilege,” on the part of the defendant, setting up a claim to a right to be sued, if at all, in Citrus County.

Under the present rules of procedure obtaining in this state, this defense may be presented either by motion or, as has been done in this case, as an affirmative defense. However the question may be presented, it must be determined prior to the other issues in the cause by some appropriate proceedings.

In this case the plaintiff has chosen as his method of testing this particular plea, which is numbered one in the defendant’s defenses, a motion for judgment on the pleadings.

From an examination of the federal authorities on this particular question, and where the same rule is in force, it appears that a motion for judgment on the pleadings is a proper procedure where, as in this case, the pleadings allege and admit sufficient facts.

The complaint shows that the place of business of the plaintiff is at or near Leesburg in Lake County and that the action involves an open account, which is presumably payable at the plaintiff’s place of business. Hence it follows that if default has been made on the payment for which suit is brought, it occurred at the plaintiff’s place of business, as has been held by our Supreme Court in Producer’s Supply, Inc. v. Harz, 6 So. 2d 375, and cases therein cited.

It follows that the plea of privilege must fail, and it is therefore ordered and adjudged that defendant’s defense numbered one being an objection to the place of trial or venue of this cause, be and the same is denied.  