205 F2d 44 William Banks Warehouses v. L Watt

205 F.2d 44

WILLIAM H. BANKS WAREHOUSES, Inc., et al., Appellants,


George L. WATT et al., Appellees.

No. 13112.

United States Court of Appeals Ninth Circuit.

June 15, 1953.

Writ of Certiorari Denied October 12, 1953.

See 74 S.Ct. 43.

Appeal from the United States District Court for the District of Idaho, Southern Division; Chase A. Clark, Judge.

J. L. Eberle, T. H. Eberle and W. D. Eberle, Boise, Idaho, L. Duncan Lloyd, Wm. H. Hillier, Chicago, Ill. (Richards, Haga & Eberle, Boise, Idaho, Lord, Bissell & Kadyk, Chicago, Ill., of counsel), for appellants.

Ray D. Agee, Frank L. Stephan, Beckwith & Langley, Parry, Keenan, Robertson & Daly, Twin Falls, Idaho, for appellees.

William R. Wallace, Jr., Maynard Garrison, William R. Ray and John R. Pascoe, San Francisco, Cal., amici curiæ.

Before MATHEWS, HEALY and BONE, Circuit Judges.


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On or about April 18, 1952, a division of this court consisting of Circuit Judges Mathews, Healy and Bone was duly designated and assigned to hear and decide this case. For that purpose, the division constituted the court. The division heard the case on May 8, 1952, and decided it on May 15, 1952.1


On June 9, 1952, appellants filed a petition for a rehearing and a rehearing en banc. On June 19, 1952, the division made and entered an order denying the petition. On April 13, 1953, the Supreme Court granted certiorari, vacated the order of June 19, 1952, and remanded the case to this court2 for further proceedings in the light of Western Pacific R. R. Corp. v. Western Pacific R. R. Co., 345 U.S. 247, 73 S.Ct. 656.


On May 27, 1953, this court's Rule 23 (formerly Rule 25) was amended by adding thereto two new paragraphs reading as follows:


"All petitions for rehearing shall be addressed to and be determined by the court as constituted in the original hearing.


"Should a majority of the court as so constituted grant a rehearing and either from a suggestion of a party or upon its own motion be of the opinion that the case should be reheard en banc, they shall so inform the Chief Judge. The Chief Judge shall thereupon convene the active judges of the court and the court shall thereupon determine whether the case shall be reheard en banc."


Pursuant to the Supreme Court's decision of April 13, 1953, and this court's Rule 23, as amended, the petition for a rehearing and a rehearing en banc has been considered by this court as constituted in the original hearing, and this court as so constituted being of the opinion that the case should not be reheard en banc or otherwise, it is now hereby ordered by this court as so constituted that the petition be and is hereby denied.


1. William H. Banks Warehouses v. Watt, 9 Cir., 196 F.2d 1018.

2. Id., 345 U.S. 932, 73 S.Ct. 793.