Before DUFFY, Chief Judge, MAJOR and HASTINGS, Circuit Judges.
MAJOR, C.J.: Plaintiff, a retired employee of defendant (defendant refers to the corporate defendant), commenced an action in the District Court for the recovery of money alleged to be due and owing under a service annuity plan in effect at and prior to the time of his retirement. It was alleged that plaintiff under said plan was entitled to monthly service annuity payments in the amount of $137.77, from the date of his retirement and during the remainder of his life. Later, plaintiff filed an additional count purporting to be a class action which sought an interpretation, modification and alteration of defendant's service annuity plan. Plaintiff demanded a trial by jury. Defendant answered the complaint and, among other things, requested its dismissal for failure to state a claim upon which relief could be granted. This action is at present pending in the District Court.
On May 20, 1957, after proper notice to defendant, plaintiff filed in the District Court his motion for a preliminary injunction. Attached thereto and made a part thereof were copies of the complaint and defendant's service annuity plan. The motion includes the allegation:
"Plaintiff has instituted this proceeding for the purpose of compelling the defendants to pay him such additional compensation or Service Annuity as required by the third paragraph of Section 4 of said Service Annuity System which annuity the defendants have arbitrarily and unlawfully denied him."
"Plaintiff has suffered and will continue to suffer great and irreparable damage unless this Court forthwith enters an interlocutory decree or decrees requiring the defendant to promptly pay him a Service Annuity of not less than $137.77 per month as prayed for in said Complaint.
"Now, Therefore, plaintiff prays that this Court grant him an immediate hearing and enter a decree or decrees as prayed for herein."
Defendant filed its answer, in which it alleged, among other things, "The plaintiff does not set forth sufficient grounds to warrant issuance of a preliminary injunction." On August 9, 1957, Judge Win G. Knoch of the District Court entered a "Memorandum and Order" as follows:
"This matter came on to be heard on plaintiff's motion for oral hearing and the taking of testimony in support of his motion for preliminary injunction.
"The Court has had the benefit of argument of counsel on briefs, and is fully advised in the premises.
"Scrutiny of all the pleadings, in the light of the arguments, fails to disclose allegations which, although viewed in the light most favorable to plaintiff, are sufficient to warrant issuance of a preliminary injunction.
"It appears unnecessary to set this matter for oral hearing and the introduction of testimony in support of the allegations which, if proved, set out no claim on which the relief sought could be granted.
"It is the order of this Court that motion for oral hearing be, and it is hereby, denied.
"It is further ordered that motion for preliminary injunction be, and it ...