Mccullough v. Dairy Queen, Inc.

290 F.2d 871, 130 U.S.P.Q. (BNA) 382, 1961 U.S. App. LEXIS 4489

• Court: Court of Appeals for the Third Circuit
• Decided: May 16, 1961
• Docket: 13522
• Status: Published

Opinion

290 F.2d 871

H. A. McCULLOUGH and H. F. McCullough, a partnership doing business as McCullough's Dairy Queen; and Burton F. Myers, Robert J. Rydeen, M. E. Montgomery and Lorraine Dale, Executrix of the Estate of Howard S. Dale, deceased, individuals
v.
DAIRY QUEEN, INC., Appellant.

No. 13522.

United States Court of Appeals Third Circuit.

Argued May 5, 1961.

Decided May 16, 1961.

Michael H. Egnal, Philadelphia, Pa., for appellant.

Mark D. Alspach, Philadelphia, Pa. (Krusen, Evans & Shaw, Philadelphia, Pa., Ooms, Welsh & Bradway, Owen J. Ooms and Malcolm S. Bradway, Chicago, Ill., on the brief), for appellees.

Before GOODRICH, STALEY and FORMAN, Circuit Judges.

PER CURIAM.

The appellant complains of a preliminary injunction issued against it by the judge of the district court. The basis of his complaint is that the judge, in issuing the injunction, found facts against him which he says are not in accord with the reality of the case. There are two answers to the appellant's contention. The first is that he had an opportunity to present testimony had he desired to do so in the district court hearing. The second, and completely conclusive, is the fact that what the trial court issued was a preliminary injunction. Upon the trial of the case on the merits each party will have opportunity to present such testimony as that party deems fit to support his case. The issue of the issuance of a preliminary injunction was a matter of discretion for the trial judge. That discretion was not abused in this instance.

The judgment of the district court will be affirmed.