Opinion
No. 5702.
November 24, 1930.
Upon Appeal from the District Court of the United States for the Northern Division of the Northern District of California.
Butler, Van Dyke Desmond, of Sacramento, Cal., and Edward P. Kelly, of Minneapolis, Minn., for appellant.
Ralph H. Lewis and George E. McCutchen, both of Sacramento, Cal., for appellees.
Before RUDKIN and WILBUR, Circuit Judges, and KERRIGAN, District Judge.
This is one of thirty cases of the same general character, submitted to this court during the May session, 1929, in all of which the appellant herein was the appealing party. The cases will be found reported in 36 F.2d 907 et seq., and 39 F.2d 900. Among the cases thus submitted and decided was Sacramento Suburban Fruit Lands Co. v. Lindquist (No. 5703) 39 F.2d 900, supra, and No. 5702, the case now under consideration. In case No. 5703 it was held that the question of the statute of limitations was properly submitted to the jury, whereas in the present case it was held that the cause of action was barred by the statute of limitations as a matter of law and that the court below should have so charged the jury. A petition for rehearing was filed in both Nos. 5702 and 5703, and the court was then of opinion that the facts of the two cases were substantially identical and that the same rule of law should obtain in both. A majority of the court, as then constituted, was further of opinion that the decision in No. 5703 was right and the decision in No. 5702 erroneous. The petition for rehearing was accordingly denied in No. 5703 and granted in No. 5702.
Upon a reargument of this case, counsel for appellant in effect conceded that there is no substantial difference in the facts in the two cases, and a re-examination of the two records convinces us that there is no such difference and that the facts of the two cases are strikingly alike.
The judgment of the court below is therefore affirmed, and the former opinion of the court is withdrawn.