Lelia Mae Sayre v. W. M. Shoemaker, Administrator of the Estate of Mrs. Rosa Shoemaker Williams Herin

Fifth Circuit

Lelia Mae Sayre v. W. M. Shoemaker, Administrator of the Estate of Mrs. Rosa Shoemaker Williams Herin

263 F.2d 370, 1 Fed. R. Serv. 2d 186, 1959 U.S. App. LEXIS 4420

CourtCourt of Appeals for the Fifth Circuit

DecidedFebruary 13, 1959

Docket17441

StatusPublished

Cited by4 cases

This text of 263 F.2d 370 (Lelia Mae Sayre v. W. M. Shoemaker, Administrator of the Estate of Mrs. Rosa Shoemaker Williams Herin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Lelia Mae Sayre v. W. M. Shoemaker, Administrator of the Estate of Mrs. Rosa Shoemaker Williams Herin, 263 F.2d 370, 1 Fed. R. Serv. 2d 186, 1959 U.S. App. LEXIS 4420 (5th Cir. 1959).

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Opinion

PER CURIAM.

The appellant seeks to enforce an alleged oral agreement, or one of several claimed such agreements, by Mrs. Rosa Shoemaker Williams Herin, now deceased, to make a will. The district court dismissed the complaint for failure to state a claim upon which relief can be granted. As to the present complaint, that is so clearly true as not to require discussion.

The district court went further and held that “there is no way in which said declaration can be amended so as to state a claim upon which relief can be granted or to state a cause of action” and dismissed the complaint “with prejudice and without leave to amend.” The appellant has suggested to this Court several different ways in which the complaint might possibly be amended so as to retain federal jurisdiction and to state a claim upon which relief can be granted. Without passing upon any of such hypothetical amendments, we think that appellant should be afforded the opportunity to amend and the appellees an opportunity to invoke the ruling of the district court as to jurisdiction and as to the merits on such specific amendment or amendments, as the appellant may offer. Only in that way, and further perhaps by motion or motions for summary judgment and affidavits in support of and in opposition thereto, can either the district court or this Court be certain that it is passing upon an actual rather than a supposed or fictitious controversy.

The judgment of dismissal is therefore reformed so as to be without prejudice and with leave to amend. The costs of appeal are taxed one half against the appellant and one half against the appel-lees.

Modified and affirmed.

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PER CURIAM.

The appellant seeks to enforce an alleged oral agreement, or one of several claimed such agreements, by Mrs. Rosa Shoemaker Williams Herin, now deceased, to make a will. The district court dismissed the complaint for failure to state a claim upon which relief can be granted. As to the present complaint, that is so clearly true as not to require discussion.

The district court went further and held that “there is no way in which said declaration can be amended so as to state a claim upon which relief can be granted or to state a cause of action” and dismissed the complaint “with prejudice and without leave to amend.” The appellant has suggested to this Court several different ways in which the complaint might possibly be amended so as to retain federal jurisdiction and to state a claim upon which relief can be granted. Without passing upon any of such hypothetical amendments, we think that appellant should be afforded the opportunity to amend and the appellees an opportunity to invoke the ruling of the district court as to jurisdiction and as to the merits on such specific amendment or amendments, as the appellant may offer. Only in that way, and further perhaps by motion or motions for summary judgment and affidavits in support of and in opposition thereto, can either the district court or this Court be certain that it is passing upon an actual rather than a supposed or fictitious controversy.

The judgment of dismissal is therefore reformed so as to be without prejudice and with leave to amend. The costs of appeal are taxed one half against the appellant and one half against the appel-lees.

Modified and affirmed.

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263 F.2d 370, 1 Fed. R. Serv. 2d 186, 1959 U.S. App. LEXIS 4420, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lelia-mae-sayre-v-w-m-shoemaker-administrator-of-the-estate-of-mrs-ca5-1959.

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