Ceramic Tilers Supply, Inc., a Corporation, Appellant, v. Tile Council of America, Inc., a Corporation, Appellee, 405 F.2d 181 (9th Cir. 1968)

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U.S. Court of Appeals for the Ninth Circuit - 405 F.2d 181 (9th Cir. 1968) December 13, 1968

Byard G. Nilsson, Nilsson, Robbins & Anderson, Los Angeles, Cal., for appellant.

James E. Biava, Pfaelzer, Robertson, Armstrong & Woodard, Los Angeles, Cal., Granville M. Pine, John A. Diaz, Morgan, Finnegan, Durham & Pine, New York City, for appellee.


Before CHAMBERS and BARNES, Circuit Judges, and HALBERT, District Judge.


In our opinion filed May 22, 1967, (see 378 F.2d 283) we sent the case back for more explicit findings. These, the district court made. Now we are asked to review the supplemental findings and appellee asserts there is no present right for us to review the findings or the whole case as supplemented by the extra findings.

We think the better way for the case to be handled is for the district court to vacate the judgment, vacate all findings and conclusions of law, make new and consolidated findings and conclusions, and then enter a new judgment. From that judgment, a new appeal can be taken. Of course, upon stipulation or on motion, we can order the whole 21,160 record transferred to the new case.

We recognize that the practice already followed by the trial court on our remand is sometimes approximately followed in criminal cases to ascertain whether a defendant has been accorded certain basic rights or has been injured by some ruling. But whatever policy reasons obtain in criminal cases for holding a judgment in effect during exploration, we do not find them in a civil case like this one.

Accordingly, the case is remanded to the district court for proceedings not inconsistent with this order and the current attempted review here in 21,160 is dismissed without prejudice as to the merits.