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Austin v. Garard

CIRCUIT COURT OF APPEALS, SEVENTH CIRCUIT


October 11, 1932

AUSTIN ET AL.
v.
GARARD ET AL.

On Petition for Rehearing.

Per Curiam.

Appellants in their petition for rehearing have called our attention to the fact that we have at times referred to their pleading as a petition to intervene and state that we have ignored the fact that two petitions to intervene were filed successively. A better understanding of the conclusion reached will be had of a statement of the proceedings which occurred in the District Court be first made.

Upon an original bill of complaint filed in the District Court, a receiver of the Garard Trust Company, an Illinois corporation, was, upon the consent of said company, duly appointed; thereafter on June 21, 1930, two petitioners, Margaret J. Austin and Hugh B. Speer, petitioned the court for leave to file an intervening petition in the cause, and on the same day such leave was granted. They thereupon filed what they called the "Intervening petition of Margaret J. Austin and Hugh B. Speer in the nature of an original bill of complaint filed by leave of court." A motion to dismiss such intervening petition was made, and the court, in granting the motion, referred to it as the "Intervening petition of Margaret J. Austin and Hugh B. Speer." Looking to both of the so-called petitions to intervene, it is apparent that the court construed the first petition as one which merely sought permission to file the formal pleading which was the second so-called petition to intervene. The permission to file the first pleading was not an adjudication of the petitioners' right to intervene or to file a bill of complaint, but was a mere permission to file something, the sufficiency and propriety of which would be determined after it was filed.

We think the District Court followed the usual practice in applications of this kind when it granted leave to petitioners to file their petition. When the complaint was filed, the District Court was required to pass on the merits and upon its jurisdiction of the cause of action set forth. It was upon this hypothesis that we wrote our opinion, but evidently failed to make ourselves clear.

As we have found nothing in the petition for rhearing which has caused us to change our conclusion, the said petition for rehearing must be and is hereby denied.

19321011

© 1998 VersusLaw Inc.



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