Opinion
No. 17239.
December 11, 1958.
Ernest Guinn, El Paso, Tex., for appellant.
J.F. Hulse, El Paso, Tex., Scott, Hulse, Marshall Feuille, El Paso, Tex., of counsel, for appellee.
Before HUTCHESON, Chief Judge, and CAMERON and BROWN, Circuit Judges.
On April 8, 1957, plaintiffs filed their original complaint for an injunction requiring reinstatement and back pay. On April 30, 1957, defendant moved to dismiss the complaint on the ground that the alleged cause of action was within the exclusive jurisdiction of the National Labor Relations Board and that plaintiffs had invoked its jurisdiction. On March 10, 1958, plaintiffs filed their first amended original petition, thereby superseding their original petition, and in it sought only a money judgment for wages and benefits. On April 2, 1958, as a result of an oversight of the amended complaint, which the record does not explain, the district judge "proceeded to hear and consider the plaintiffs' original petition, same being the complaint filed by plaintiffs herein, and to hear defendant's motion to dismiss", and thereupon to order "that defendant's motion to dismiss is granted and the action is hereby dismissed".
In thus basing his action on, and dismissing, an abandoned pleading, the district judge erred, and the judgment must be reversed and the cause remanded for further and not inconsistent proceedings.
Reversed and remanded.