421 F.2d 884 (5th Cir. 1970), 28052, Flying Saucers, Inc. v. Moody

Docket Nº:28052.
Citation:421 F.2d 884
Party Name:FLYING SAUCERS, INC., a Florida Corporation, Plaintiff-Appellant, v. Shearn MOODY, Jr., Defendant-Appellee.
Case Date:January 27, 1970
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 884

421 F.2d 884 (5th Cir. 1970)

FLYING SAUCERS, INC., a Florida Corporation, Plaintiff-Appellant,

v.

Shearn MOODY, Jr., Defendant-Appellee.

No. 28052.

United States Court of Appeals, Fifth Circuit.

January 27, 1970

Page 885

James F. Dougherty, Henry H. Taylor, Jr., Robert J. Paterno, Taylor, Brion, Buker, Hames, Greene & Whitworth, Miami, Fla., for appellant.

William D. Decker, A. R. Schwartz, Markwell, Stubbs, Decker, Dalehite & Youngblood, Galveston, Tex., Ferrell & Young, Miami, Fla., for appellee.

Before JOHN R. BROWN, Chief Judge, TUTTLE and MORGAN, Circuit Judges.

TUTTLE, Circuit Judge:

This is an appeal from an order dismissing a plaintiff's suit for the purchase price of a vessel, such dismissal being based upon a motion to dismiss and quash service under Florida's Long-Arm Statute, Fla.Stats. § 48.181, F.S.A. 1

Since no evidentiary hearing was held, but the trial court entered the order of dismissal on the simple motion alleging that the defendant was a resident of the State of Texas and had been served only by mail, we must test the correctness of this order quashing service and ordering a dismissal of the action by the contents of the complaint, together with the affidavit attached thereto. There is no dispute of the facts from which the trial court was required to arrive at its conclusion on the question whether Mr. Moody was a 'person * * * who (is a) resident of any other state or country' who had accepted 'the privilege extended by law to non-residents and others to operate, conduct, engage in, or carry on a business venture in the state, * * *.'

The complaint had attached to it an affidavit, to which no counter affidavit or showing has been made, presenting the following state of facts:

(a) On or about April 18, 1968, the defendant spoke with John F. Manson, a major stockholder of the Plaintiff corporation, at which time the defendant advised the said Jack Manson that subject to a survey he wanted to buy the oil screw hydrofoil called the DISCO VOLANTE at and for a purchase price of $10,000 in cash and 22,000 shares of the capital stock of The Empire Life Insurance Company of America, an Alabama corporation; the defendant told the plaintiff that his attorney was Senator A. R. Schwartz, of Galveston, Texas, and agreed that his attorney would close the transaction with the plaintiff's attorney; a trial run of said vessel was arranged for the following day. Thereafter, the defendant sent his agent, one Rudy Teichman, of Galveston, Texas to Miami, Florida to inspect and survey said vessel. That, thereafter, on or about April 19, 1968, at the request of the defendant, said vessel was towed down the Miami River and a trial run conducted under the supervision of the said Rudy Teichman. That the...

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