Mrs. Eloise Carter, Appellant, v. Mrs. Lois Croswell, Appellee, 325 F.2d 431 (5th Cir. 1964)

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US Court of Appeals for the Fifth Circuit - 325 F.2d 431 (5th Cir. 1964) January 2, 1964

Appeal from United States District Court for the Southern District of Mississippi, William Harold Cox, Judge.

Scott Tennyson, Jackson, Miss., for appellant.

P. H. Eager, Jr., Jackson, Miss., Thomas D. Bourdeaux, Meridian, Miss., for appellee.

Before RIVES, CAMERON and HAYS,*  Circuit Judges.

PER CURIAM.


The petition for rehearing in this case informs us that prior to our decision (323 F.2d 696 (5th Cir. 1963)) the claim of the plaintiff was settled. Our decision was based upon the representation that this was a partial appeal, because the issue of damages remained for determination by the district court. However the settlement, of which we were not made aware, left nothing pending in the district court.

We therefore grant the petition for rehearing and withdraw the previous decision. Approaching the case on the merits, we reverse the judgment of the lower court and remand the matter for trial of the issues raised by the counterclaim. Robbins v. Milner Enterprises, Inc., 278 F.2d 492 (5th Cir. 1960); Braniff v. Jackson Avenue-Gretna Ferry, Inc., 280 F.2d 523 (5th Cir. 1960); Stanley v. Guy Scroggins Const. Co., 297 F.2d 374 (5th Cir. 1961).

 *

Of the Second Circuit, sitting by designation