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MATTHEW S. KAINZ AND ROSE KAINZ v. ANHEUSER-BUSCH (03/17/52)

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT


March 17, 1952

MATTHEW S. KAINZ AND ROSE KAINZ, COPARTNERS DOING BUSINESS AS MATT AND NEAL'S LIQUORS; FRANK H. BERGER, RENA P. BERGER, AND IRVING PECKLER, COPARTNERS DOING BUSINESS AS GAGE LIQUOR STORE; ELI W. BLOCK AND JOE STARR, COPARTNERS DOING BUSINESS AS BLOCK-STARR; AND MORRIS WASSERMAN
v.
ANHEUSER-BUSCH, INCORPORATED; HOME DELIVERY, INCORPORATED; RALPH S. MEECH, JR.; AND AUGUST R. ROSELLE.

Before MAJOR, Chief Judge, LINDLEY and SWAIM, Circuit Judges.

Per Curiam: In their petition for rehearing defendants ask us to "remand the case for further determination with regard to the question whether or not the case actually arises out of the same series of transactions." In the interest of regularity of proceedings we think the request must be denied. We have held merely that, upon the pleadings submitted, supplemented by an affidavit as to what plaintiffs expect to prove, a prima facie case is made out, i.e. a sufficient showing of a right to join the plaintiffs in one action under the two rules discussed in our opinion. What may happen hereafter as the cause progresses is not before us; indeed, it can not be foreseen. Consequently we think it improper on our part to remand a cause where we have held the pleadings sufficient, to hear again the very question upon which the parties were heard in the District Court and, upon review, in this court. All future proceedings, all questions of sufficiency of the evidence to support the pleading, and the multitudinous questions which arise in the course of a trial de novo are for the trial court; not for a court of review. The trial tribunal must remain unhampered by any preconceived ideas on our part upon anything other than the right of plaintiffs to attempt to prove their claim.

The petition for rehearing is denied.

19520317

© 1998 VersusLaw Inc.



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