St. Louis-San Francisco Ry. v. Rd. Yardmasters

Full title: ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant, v. RAILROAD…

Court: United States Court of Appeals, Fifth Circuit

Date published: Jun 28, 1965

347 F.2d 983 (5th Cir. 1965)

Opinion

No. 21912.

June 28, 1965.

Martin M. Lucente, Chicago, Ill., Ernest D. Grinnell, Jr., Paul R. Moody, St. Louis, Mo., Judge Gambill, Fort Worth, Tex., Robert E. Burns, Dallas, Tex., Harry McCall, Jr., Chaffe, McCall, Phillips, Burke, Toler Hopkins, New Orleans, La., Sidley, Austin, Burgess Smith, Chicago, Ill., for defendant-appellant, Allen, Gambill Gambill, Fort Worth, Tex., Burford, Ryburn Ford, Dallas, Tex., of counsel.

Charles J. Morris, Dallas, Tex., for appellee, Mullinax, Wells, Morris Mauzy, Dallas, Tex., of counsel.

Before WOODBURY,^_ JONES and GEWIN, Circuit Judges.

_ Senior Judge of the First Circuit, sitting by designation.

PER CURIAM.

When the substantive issue involved in this case was decided by the National Railway Adjustment Board, this Court dismissed the appeal as moot. The appellant has, by motion, urged that our judgment dismissing the appeal be recalled and vacated and that we reverse the injunctive order of the district court and direct that the complaint be dismissed. We conclude that the motion should be granted. The approved procedure, when a case has become moot while an appeal is pending, is to vacate or reverse the order or judgment from which the appeal was taken, "with directions * * * to dismiss the bill of complaint * * *, because the controversy involved has become moot and, therefore, no longer a subject appropriate for judicial action." Baltimore Ohio R.R. Co. v. Anchor Coal Co., 279 U.S. 812, 49 S.Ct. 262, 73 L.Ed. 971. See also United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36; Duke Power Co. v. Greenwood County, 299 U.S. 259, 57 S.Ct. 202, 81 L.Ed. 178; Brownlow v. Schwartz, 261 U.S. 216, 43 S.Ct. 263, 67 L.Ed. 620; Atherton Mills v. Johnston, 259 U.S. 13, 42 S.Ct. 422, 66 L.Ed. 814; United States v. Hamburg-American Line, 239 U.S. 466, 36 S.Ct. 212, 60 L.Ed. 387. But see Verret v. Oil Transport Co., 365 U.S. 768, 81 S.Ct. 911, 6 L.Ed.2d 83 .

Our reversal of the district court's injunctive order is not to be regarded as a determination of the propriety of the issuance of the order. The sole ground of our reversal is that the cause has become moot.

The judgment of this Court dismissing the appeal is recalled, vacated and set aside. The order of the district court is vacated and the cause is remanded with directions to dismiss the complaint and the action.

Prior judgment recalled and vacated.

Reversed and remanded.