NO. 07-04-0260-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

SEPTEMBER 2, 2004

______________________________

ELLERY CORNELIUS OLIVER, APPELLANT

V.

ZONIA A. SCOTT, APPELLEE

_________________________________

FROM THE COUNTY COURT AT LAW NO. 2 OF POTTER COUNTY;

NO. 91,428; HONORABLE PAMELA C. SIRMON, JUDGE

_______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.

MEMORANDUM OPINION

Pending before this Court is appellant Ellery Cornelius Oliver’s motion by which he requests we dismiss this appeal. ^{(footnote: 1)}  Oliver, an inmate proceeding pro se and informa pauperis , originally filed suit against appellee Zonia A. Scott in justice court where his claim was dismissed pursuant to chapter 14 of the Texas Civil Practice and Remedies Code.  After his appeal to the County Court At Law No. 2 was dismissed for lack of prosecution, he appealed to this Court.

In his motion, Oliver indicates a desire to re-file his claim.  Thus, because the dismissal of his claim in county court was not a ruling on the merits, we dismiss this appeal without prejudice.   Cf. Hughes v. Massey, 65 S.W.3d 743, 746 (Tex.App.–Beaumont 2001, no pet.) (holding that it was error to dismiss with prejudice an inmate’s suit for failure to comply with the rules governing the filing of in forma pauperis suits).

Without passing on the merits of this appeal, pursuant to Rule 42.1(a)(1) of the Texas Rules of Appellate Procedure, we grant the motion and dismiss the appeal without prejudice.  Having dismissed the appeal at Oliver’s request no motion for rehearing will be entertained and our mandate will issue forthwith.

Don H. Reavis

   Justice

FOOTNOTES

1:

Oliver requests that his case be exchanged and transferred for refiling pursuant to Rule 330(e) of the Rules of Civil Procedure.  Rule 330(e), however, does not apply.