Western Pac. R. Corp. v. Western Pac. R. Co. Metzger v. Western Pac. R. Co.

205 F.2d 374, 1953 U.S. App. LEXIS 2589

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 12, 1953
• Docket: 12506_1
• Status: Published

Opinions

PER CURIAM.

On or about January 3, 1951, a division of this court consisting of Circuit Judge Healy and District Judges Fee and Byrne-was designated and assigned to hear and decide this case. For that purpose, the division constituted the court. The division heard the case on February 28, 1951, and decided it on October 29, 1951.¹

On December 17, 1951, three of the parties (Meredith H. Metzger, Henry Offer-man and J. S. Farlee & Company) filed a petition for a rehearing and a rehearing en banc. On December 18, 1951, two of the parties (Western Pacific Railroad Corporation and Alexis I. du P. Bayard) filed a petition for a rehearing and a rehearing en banc. On January 30, 1952, the division made and entered an order denying the peti-' tions of December 17, 1951, and December 18, 1951, for a rehearing and striking them in so far as they sought a rehearing en banc.²

On March 10, 1952, Western Pacific Railroad Corporation and Bayard filed a petition for leave to file a motion (1) to vacate the order of January 30, 1952, and (2) to reinstate the petition of December 18, 1951. The division requested that the petition of March 10, 1952, be considered and acted upon by the court en banc. The request was complied with. The court en banc considered the petition of March 10, 1952, and, on July 9, 1952, made and entered an order denying it.³

The Supreme Court granted certiorari⁴ and, on April 6, 1953, vacated the orders of January 30, 1952, and July 9, 1952, and remanded the case to this court for further proceedings.⁵

On May 27, 1953, this court’s Rule 23 (formerly Rule 25) was amended by adding thereto two new paragraphs reading as follows :

“All petitions for rehearing shall he addressed to and be determined by the court as constituted in the original hearing.

“Should a majority of the court as so constituted grant a rehearing and either from a suggestion of a party or ■upon its own motion be of the opinion that the case should be reheard en banc, they shall so inform the Chief Judge. The Chief Judge shall thereupon convene the active judges of the court and the court shall thereupon determine whether the case shall be reheard en banc.”

Pursuant to the Supreme Court’s decision of April 6, 1953, and this court’s Rule 23, as amended, it is now hereby ordered by this court en banc that the petition of March 10, 1952, be and is hereby referred hack to the division,⁶ and that the division be and is hereby designated and assigned to consider that petition and to take such action thereon as may he proper, such action to he in conformity with this court’s Rule 23, as amended.

1 . Western Pacific R. Corp. v. Western Pacific R. R. Co., 9 Cir., 197 F.2d 994.

2 . Id., 9 Cir., 197 F.2d 994, 1012.

3 . Id., 9 Cir., 197 F.2d 994, 1013.

4 . Id., 344 U.S. 809, 73 S.Ct. 28.

5 . Id., 815 U.S. 247, 73 S.Ct. 656.

6 . The petitions of December 17, 1951, and December 18, 1051, have never been, and are not now, before this court en banc.