Opinion
July 6, 1951. Rehearing Denied August 7, 1951.
Appeal from the Circuit Court, Manatee County, W.T. Harrison, J.
Martin Caraballo, Tampa, for appellant.
E.C. Kavanaugh, Jr., and G.P. Smythe, Bradenton, for appellee.
This is a divorce suit wherein appellant was defendant below and appellee was the plaintiff. Appellee instituted suit against her husband, the appellant, in Manatee County, Florida. It affirmatively appears from the pleadings and testimony that the appellant was, at the time the suit was instituted, a resident of St. Johns County, Florida; that both parties had lived in St. Johns County until appellee left her husband in that county and went to live with relatives in Manatee County and that the cause of action accrued in St. Johns County. Appellant filed a plea of privilege to be sued in St. Johns County, which was the county of his residence. Said plea was founded upon Section 46.01, Florida Statutes 1941, F.S.A. The Chancellor in the final decree expressly overruled and denied the plea.
Apparently the learned Chancellor predicated his order denying the plea of privilege upon the fact as he found it to be that the appellee had taken up her residence in Manatee County by virtue of necessity, that is to say, that the appellant had mistreated appellee to such extent as to cause her to seek haven in Manatee County and to be afraid to return to St. Johns County to institute the divorce action.
Regardless of the fact that we find little, if any, testimony which justifies such conclusion, it is evident that the sole question for our determination is whether the Chancellor erred in overruling and denying the plea of privilege. The answer to such question is found in the statute itself. Section 46.01, Florida Statutes 1941, F.S.A., so far as it is material, reads as follows: "Suits shall be begun only in the county * * * where the defendant resides, or where the cause of action accrued, or where the property in litigation is located."
This statute is clear and positive in its terms and does not contain any exception with reference to divorce cases, although the wife may have been required to leave her husband by virtue of his cruel treatment.
Counsel for appellee find comfort in our opinion in the case of Edmundson v. Edmundson, 133 Fla. 703, 182 So. 824. Evidently the Chancellor considered that case as writing an exception into Section 46.01, supra. We do not so interpret that opinion, although the language of headnote No. 4 clearly states that a wife who could not longer live with her husband because of his cruelty might acquire in good faith a separate residence in another county and maintain divorce suit in that county. There was nothing remiss in the pronouncement in that case of the stated principle. We have repeatedly and consistently declared and adhered to that ruling. However, the question now before us is one of venue — not of jurisdiction. See Gay v. Jacksonville Symphony Association, Fla., 53 So.2d 110.
In the body of the opinion in the Edmundson case the following language will be found: "There is evidence to sustain the Master's findings of facts showing waiver by the defendant of his plea of privilege, even if the plaintiff were not authorized to maintain her suit for divorce and alimony, etc., in Duval County where she resided with her father at the institution of the suit and where some of the acts of cruelty alleged were committed, the plaintiff having a right to in good faith acquire a residence separate from that of her husband, when because of his alleged cruelty and fault, she cannot longer live with him, the most natural place for her to resort for protection and propriety being the home of her father." (Emphasis supplied.) [ 133 Fla. 703, 182 So. 826.]
This statement shows clearly that the decision in the Edmundson case turned upon waiver by the defendant of his plea of privilege. Moreover, some of the acts of cruelty alleged in that case were committed in the county in which the wife instituted her suit.
It is unnecessary to cite authorities for the proposition that the Court is not vested with authority to enact laws but only to interpret them. We cannot rewrite Section 46.01, supra, and include in it an exception which the legislature omitted therefrom, although good conscience and equitable considerations might urge us ever so strongly to do so. The legislature is the only branch of government which is authorized and empowered to make laws. It is possible that the situation presented in and by this case, if brought to the attention of the legislature, might cause it to create an exception by an amendment to or of Section 46.01, supra.
The appellant brought himself within the provisions of Section 46.01, supra, and therefore the action should not have been instituted, and could not thereafter be maintained, in Manatee County. The cause of action in this case accrued entirely in St. Johns County and there can be no question that the appellant (defendant below) resided in that county at the time this suit was begun in Manatee County. There is nothing in the record to show that the appellant waived his plea of privilege but, on the contrary, he insisted upon it.
We are forced to the conclusion that our judgment must be one of reversal.
Reversed.
SEBRING, C.J., and THOMAS and ADAMS, JJ., concur.
TERRELL, CHAPMAN and ROBERTS, JJ., dissent.