352 F2d 86 Carmichael v. City of Greenwood Mississippi

352 F.2d 86

Stokely CARMICHAEL et al., Appellants,

No. 22289.

United States Court of Appeals Fifth Circuit.

September 30, 1965.

Benjamin E. Smith, New Orleans, La., L. H. Rosenthal, Jackson, Miss., for appellants.

Hardy Lott, Greenwood, Miss., for appellee.

Before RIVES, BROWN, and WISDOM, Circuit Judges.


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On consideration of Appellants' suggestion for summary reversal, and their motion for leave to supplement the mimeographed record on appeal, and Appellee's memorandum and brief in opposition thereto,


It is ordered that the motion for leave to supplement the mimeographed record be and the same is hereby granted as to the tendered affidavit or affidavits which were in fact filed with and a part of the record in the District Court; but denied as to the affidavits tendered for filing in this Court for the first time without prejudice, however, to the right of the Appellants to file such affidavits or produce similar factual testimony in the District Court on the remand herein ordered;


It further appearing that the District Court did not pass upon the issue of timely service of the removal petition and the procedural steps in the asserted removals and held that the "remand must be ordered even if the petition was filed and served in time" for reasons set forth in the incorporated opinion of the District Judge in City of Clarksdale v. Gertge, D.C., 237 F.Supp. 213 (December 23, 1964), which decision was rendered prior to the decisions of this Court in Rachel v. Georgia, 5 Cir., 1965, 342 F.2d 336; Peacock v. City of Greenwood, 5 Cir., 1965, 347 F.2d 679 [June 22, 1965]; and Cox v. Louisiana, 5 Cir., 1965, 348 F.2d 750 [June 29, 1965], it is further ordered, adjudged and decreed that the orders in these consolidated cases of the District Court shall be and the same are hereby vacated and reversed and the cause is remanded to the District Court for further consistent proceedings including such factual hearings as may be appropriate with respect to both procedural and substantive matters.


It is further ordered that in order to avoid any conflict between the United States District Court and the Courts of Mississippi and the respective officers thereof with respect to the arrest or confinement of any one or more of all of appellants-petitioners, the stay provisions of Paragraphs (5), (6), (7) are continued in effect until such time as the District Judge on the remand herein ordered enters further orders after due notice with respect thereto.