597 F2d 62 Thornton v. Bean Contracting Company Inc

597 F.2d 62

E. H. THORNTON, Jr., Plaintiff-Appellee, Cross-Appellant,
v.
BEAN CONTRACTING COMPANY, INC., a/k/a Bean Contracting
Corp., Defendant-Appellant, Cross-Appellee.

No. 76-3522.

United States Court of Appeals,
Fifth Circuit.

June 15, 1979.

Grant Cook, James R. Leahy, Houston, Tex., for defendant-appellant, cross-appellee.

William L. Burnett, Houston, Tex., for plaintiff-appellee, cross-appellant.

Appeals from the United States District Court for the Southern District of Texas.ON PETITION FOR REHEARING

Before GEE and VANCE, Circuit Judges, and HUNTER,* District Judge.

PER CURIAM:

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1

On petition for rehearing, petitioners have urged the Court to receive and consider newly discovered evidence which they describe as:

2

"copies of Amended Complaint of Dragados, S.A. against Cal-Surance, Third-Party Complaint of Cal-Surance against Seller, and Counterclaim of Seller against Dragados S.A., in C.A. No. 77-4081, styled Dragados, S.A. vs. Cal-Surance Overseas Agency, Inc., et al., in the United States District Court for the Central District of California."

3

This evidence was not in existence when the case was tried and was not discovered by plaintiff-appellee or his attorney until April 20, 1979. Movant's request that this new evidence be received, filed and considered in connection with his petition for Panel Rehearing is granted.

4

This statement on page 1289 of this Court's opinion of April 11, 1979, 592 F.2d 1287, is to the effect that Dragados "released its claim to the insurance proceeds" is withdrawn in light of the litigation in California. Otherwise,

5

IT IS ORDERED that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby DENIED.

*

District Judge, Western District of Louisiana, sitting by designation