Opinion
No. 73-3262.
March 18, 1974.
Frank McRight, Kirk C. Shaw, Mobile, Ala., for Scott Paper.
R. F. Adams, Brock B. Gordon, Mobile, Ala., for Int'l Paper.
John J. Coleman, Jr., Samuel H. Franklin, Birmingham, Ala., for MacMillan Bloedel Inc., amicus curiae.
Harry H. Riddick, Joseph M. Allen, Jr., Mobile, Ala., for J. B. Jones Timber Co., and others, amicus curiae.
James U. Blacksher, Mobile, Ala., John G. Ratcliff, Hattiesburg, Miss., William H. Allison, Jr., Louisville, Ky., for defendants-appellees.
Appeal from the United States District Court for the Southern District of Alabama.
Before COLEMAN, AINSWORTH and GEE, Circuit Judges.
The parties have briefed and argued this appeal, in general, as if it were from a final judgment on the merits. This was caused by an order of the District Court, possibly an inadvertence, which denied "motions for temporary and permanent injunctions". The fact nevertheless remains that the record is bereft of any order, before or after the commencement of the hearing, directing a trial of the case on the merits, consolidated with the hearing of the application for a preliminary injunction, Rule 65(a)(2), Federal Rules of Civil Procedure. Consequently, only the action on the preliminary injunction is presently reviewable.
We are of the view that there was no abuse of discretion in the denial of the preliminary injunction. Pending the development of a full and complete record in a trial, and a final judgment, we abstain from a discussion of the merits. We do note, however, that the trial, if and when held, should be limited to the named defendants.
In view of the thorough exposition of the law of preliminary injunctions recently written by Judge Thornberry, there is no necessity to resurvey that ground, see Canal Authority of State of Florida v. Callaway, 5 Cir., 1974, 489 F.2d 567. Neither the District Court nor counsel had the benefit of Canal Authority in handling this case below.
We therefore affirm the denial of the preliminary injunction and remand to the District Court for further proceedings.
Affirmed and remanded.