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UNITED STATES v. DEATON et al.

No. 14525.

United States Court of Appeals Fifth Circuit.

Nov. 4, 1953.

William L. Hogue, Asst. U. S. Atty.,. Birmingham, Ala., Morton Hollander,. Alan S. Rosenthal, Samuel D. Slade,. Attys, Dept, of Justice, Washington, D.. C., Warren E. Burger) Asst. Atty. Gen.). John D. Hill, U. S. Atty., Birmingham,. Ala., Frank M. Johnson, Jr., U. S. Atty.,. Jasper, Ala., for appellant.

D. H. Markstein, Jr., Maurice F.. Bishop, Birmingham, Ala., for appellees..

Before HOLMES and RIVES, Circuit Judges, and KENNAMER, District. Judge. ,

HOLMES, Circuit Judge.

The question here is not whether the-plaintiff-appellant was so negligent ini the prosecution of this action as to warrant its dismissal by the district court, with prejudice, but whether having dis-missed it without prejudice, with the-*727conditional right to reinstate the same within 60 days, the court exceeded its power or abused its discretion in changing the order of dismissal from without prejudice to with prejudice after the expiration of said 60 days.

The order of dismissal without prejudice in this case was entered on September 10, 1952. On motion of the appellees, filed November 25, 1952, the court below on the same day ordered and adjudged that said action be, and the same was, dismissed with prejudice. In so doing, we think the district court exceeded its power. Therefore, the judgment appealed from is reversed and the cause is remanded to the district court with directions to set aside and hold for naught the judgment of dismissal with prejudice, and for such further proceedings, if any, as shall not be inconsistent herewith.

The motion to tax costs against appellees for unnecessarily encumbering the record is sustained.

Reversed.

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