351 F2d 455 International Breweries Inc v. Swed Distributing Company

351 F.2d 455

INTERNATIONAL BREWERIES, INC., Appellant,
v.
SWED DISTRIBUTING COMPANY and Louis Swed, Appellees.

No. 22057.

United States Court of Appeals Fifth Circuit.

Oct. 7, 1965.

James E. Lehan, Tampa, Fla., Wm. Dowdell Denson, New York City, for appellant.

T. Paine Kelly, Jr., Tampa, Fla., for appellees.

Before TUTTLE, Chief Judge, THORNBERRY, Circuit Judge, and CARSWELL, District Judge.

PER CURIAM:

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1

On March 26, 1963, the district court entered an order quashing an attempted service of summons by appellant. Appellant had attempted to serve process upon appellee Swed Distributing Company, a dissolved Florida corporation, by delivering process to an officer of Swed Distributing Company. The order of the district court was based solely on the ground 'that a dissolved corporation can only be served by serving its last named directors, as trustees for said dissolved corporation.'

2

Attempting to respond to this order, appellant served process upon Swed Distributing Company by service upon Louis Swed, as director-trustee of said dissolved Florida corporation.

3

On January 21, 1964, the district court granted appellee's motion to dismiss 'because the said Swed Distributing Company is a dissolved corporation of Florida and is not subject to suit and service of process in the manner attempted by plaintiff.'

4

On January 29, 1964, appellant filed a 'motion for rehearing,' and in the last paragraph thereof urged the court 'to add along with Swed Distributing Company, a dissolved Florida corporation, 'Louis Swed, B. C. Garnett and Mrs. Georgia E. Sullivan, as the last named directors and as trustees of Swed Distributing Company, a dissolved Florida Corporation' and directing that the cause thus proceed.'Apparently this request to add additional parties was not called to the attention of the district court and was therefore not acted upon by the court when it considered appellant's motion for rehearing on February 12, 1964. In its order of February 12, the district court granted appellant's motion 'to the extent of permitting additional argument on the issue ruled upon in the Court's order of January 21, 1964 * * *.' The district court then affirmed its order of January 21, 1964, and on August 24, 1964 entered an Order for Final Judgment.

5

It appears to this Court that appellant is entitled to have its request to add additional parties considered as a motion to amend its pleadings so as to respond to the district court's order of January 21, 1964, and on the basis of the record before us we feel that it should be granted.

6

Therefore, it is ordered that the order of dismissal of January 21, 1964 and the Order for Final Judgment of August 24, 1964, be and the same are hereby vacated and the cause is hereby remanded to the district court for further proceedings in light of the views expressed herein.

7

Vacated and remanded.