Lucy et al. v. Board of Trustees of University of Alabama et al, 213 F.2d 846 (5th Cir. 1954)

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U.S. Court of Appeals for the Fifth Circuit - 213 F.2d 846 (5th Cir. 1954) June 15, 1954

Robert L. Carter, Constance Baker Motley, New York City, Arthur D. Shores, Birmingham, Ala., Thurgood Marshall, New York City, for appellants.

Frontis H. Moore, Andrew J. Thomas, Samuel H. Burr, Birmingham, Ala. (Burr, McKamy, Moore & Tate, Birmingham, Ala., of counsel), for appellees.

Before HOLMES and STRUM, Circuit Judges, and THOMAS, District Judge.

HOLMES, Circuit Judge.


In the order appealed from, dismissing the complaint as to each of the defendants in this cause, the court below allowed the plaintiffs fifteen days within which to amend their complaint. It also allowed one of the defendants until October 27, 1953, to file objections to the application to substitute him as a party defendant for defendant Bidgood. The order appealed from was dated October 9, 1953, and the notice of appeal was filed October 27, 1953. There is nothing in the record to show that the plaintiffs did not amend their complaint within the fifteen days allowed them for that purpose, and there is nothing in the record to show that Oliver Cromwell Carmichael did not file objections to the application to substitute him as a party defendant for defendant Bidgood. Accordingly, the appeal was prematurely filed and should be dismissed for that reason. Western Electric Co. v. Pacent Reproducer Corporation, 2 Cir., 37 F.2d 14. It is so ordered.

Appeal dismissed.