263 F2d 370 Sayre v. W M
263 F.2d 370
Lelia Mae SAYRE, Appellant,
W. M. SHOEMAKERAdministrator of the Estate of Mrs. Rosa
Shoemaker Williams Herin, et al., Appellees.
United States Court of Appeals Fifth Circuit.
Feb. 13, 1959.
John W. Dulaney, Jr., William P. Dulaney, Tunica, Miss., Dulaney & Dulaney, Tunica, Miss., of counsel, for appellee.
Before RIVES and WISDOM, Circuit Judges, and WRIGHT, District Judge.
The appellant seeks to enforce an alleged oral agreement, or one of several claimed such agreements, by Mrs. Rosa Shoemaker Williams Herin, now deceased, to make a will. The district court dismissed the complaint for failure to state a claim upon which relief can be granted. As to the present complaint, that is so clearly true as not to require discussion.
The district court went further and held that 'there is no way in which said declaration can be amended so as to state a claim upon which relief can be granted or to state a cause of action' and dismissed the complaint 'with prejudice and without leave to amend.' The appellant has suggested to this Court several different ways in which the complaint might possibly be amended so as to retain federal jurisdiction and to state a claim upon which relief can be granted. Without passing upon any of such hypothetical amendments, we think that appellant should be afforded the opportunity to amend and the appellees an opportunity to invoke the ruling of the district court as to jurisdiction and as to the merits on such specific amendment or amendments, as the appellant may offer. Only in that way, and further perhaps by motion or motions for summary judgment and affidavits in support of and in opposition thereto, can either the district court or this Court be certain that it is passing upon an actual rather than a supposed or fictitious controversy.
The judgment of dismissal is therefore reformed so as to be without prejudice and with leave to amend. The costs of appeal are taxed one half against the appellant and one half against the appellees.
Modified and affirmed.