254 F2d 819 Winn v. G M Simmons

254 F.2d 819

T. Davies WINN, Jr., Appellant,
G. M. SIMMONS, As Clerk of the Circuit Court in and for
Brevard County, Florida, Appellee.

No. 17004.

United States Court of Appeals Fifth Circuit.

April 29, 1958.

T. Davies Winn, Jr., Thomasville, Ga., in pro. per.

Russell Snow (of Snow & Campbell), Cocoa, Fla., for appellee.

Before HUTCHESON, Chief Judge, and TUTTLE and BROWN, Circuit Judges.


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Plaintiff, a layman and a resident of Georgia, brought this suit against Simmons, as Clerk of the Circuit Court in and for Brevard County, Florida, and a resident of Florida, where service of summons was made on him for an order requiring the defendant 'to immediately and forthwith perform his ministerial duty' by filing certain papers which plaintiff had sent to him.


Appearing by motion to dismiss for want of jurisdiction, defendant, among other grounds, urged that the defendant had not been served in Georgia but in Florida, and, therefore, had not been properly served.


At the hearing on the motion there was a friendly colloquy between the court and counsel. In it, plaintiff stating that he had consulted a lawyer and had been told that if the defendant would consent to, and would appear voluntarily in, the suit, the court would have jurisdiction. but that, without that consent, it would not, and the counsel for the defendant declining to so appear, the district judge, on May 13, 1957, entered an order dismissing the suit for want of jurisdiction but without prejudice to the plaintiff's rights to renew his action in the appropriate court. From this order plaintiff did not appeal.


On September 23, 1957, more than 90 days thereafter, plaintiff filed what he called a Motion for Clarification, with exhibits attached. On September 27, this motion was denied, and on October 25, 1957, plaintiff filed notice of appeal and designated to be sent up the whole record made since the filing of the suit.


The order dismissing the suit for want of jurisdiction is not appealed from. The order denying the Motion for Clarification is not an appealable order. Nothing, therefore, is presented for our decision, and the appeal must be, and it is hereby, dismissed.