T. Davies Winn, Jr., Appellant, v. Mr. and Mrs. H. H. Hudson et al., Appellees, 248 F.2d 540 (5th Cir. 1957)

Alleging that plaintiff, a citizen of Georgia, had paid defendants, citizens of Florida, $4.00 as a subscription to the Titusville, Florida Star Advocate, and had received their agreement to deliver the paper, the suit was for specific performance of the agreement and for damages in the sum of $5,000 for its breach, together with an alternative prayer for $25,000 damages if specific performance was denied.

The defendants moving to dismiss the action on the ground that service had not been properly made upon the defendants and that the court lacks jurisdiction because the amount actually in controversy is less than $3000, exclusive of interest and costs, there was a hearing on the motion to dismiss, and, after a long colloquy, the court, ascertaining from the showing made that no valid service had been made on the defendants, that they had not consented and would not consent to appear in the cause, ordered it dismissed "without prejudice to the plaintiff's rights to renew his action in the appropriate court".

Appealing from the judgment and treating the case as though it had been disposed of below on the merits, plaintiff is here with a lengthy brief made up of citations of and quotations from many Georgia opinions which, though interesting and informative in themselves, have no bearing on or relation to the sole question this appeal presents, whether the court erred in dismissing the cause for lack of jurisdiction of the defendants without prejudice to the institution of another suit in a proper court.

Appellees in their brief, pointing this out, insist that on the face of the record it is entirely clear that the judgment was right and must be affirmed.

We agree with appellees that this is so. Based, as it is, upon a record fully supporting it, and drawn so as to save plaintiff from any prejudice therefrom to the merits of his claim, the judgment correctly and properly disposed of the action, and it should be, and is affirmed.