Transit Casualty Company v. Security Trust Co

Full title: TRANSIT CASUALTY COMPANY et al., Appellants, v. SECURITY TRUST COMPANY et…

Court: United States Court of Appeals, Fifth Circuit

Date published: Aug 29, 1968

399 F.2d 665 (5th Cir. 1968)

Opinion

No. 25249.

August 29, 1968.

Paul R. Larkin, Jr., S.J. Powers, Jr., James E. Tribble, Miami, Fla., George P. Bowie, St. Louis, Mo., for appellants.

James A. Dixon, Miami, Fla., Brooks P. Hoyt, Tampa, Fla., Reginald L. Williams, Sam Daniels, Miami, Fla., for appellees.

Before WISDOM and COLEMAN, Circuit Judges, and COMISKEY, District Judge.

ON PETITION FOR REHEARING EN BANC

PER CURIAM.

The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.

ORDER ON PETITION FOR REHEARING

Appellants filed a Petition for Rehearing and alternative Motion for Modification and Clarification of the June 28, 1968 Per Curiam of this Court. 396 F.2d 803.

For rehearing, appellants urge two principle points, both of which deal again with the merits or demerits of the District Court's order in attempting to define the parties to be included within the appellants' class action. Again appellants overlook that really the only issue on appeal is the compliance vel non with the District Court's order of September 14, 1966, and, having found a failure of compliance on the part of appellants, the District Court's judgment of dismissal was affirmed with directions that the order be entered without prejudice as set out in our Per Curiam of June 28, 1968. This Court will not modify its previous ruling despite any Florida law claimed by appellants which may or may not bar a subsequent cause of action in any future suit.

It is therefore ordered that appellants Petition for Rehearing and alternative Motion for Modification and Clarification of our June 28, 1968 Per Curiam are denied, and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing En Banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.