Smartt v. COCA-COLA BOTTLING CORPORATION, 15690.
Decision Date | 28 October 1964 |
Docket Number | No. 15690.,15690. |
Citation | 337 F.2d 950 |
Parties | J. Polk SMARTT and Isabel Smartt, Plaintiffs, v. COCA-COLA BOTTLING CORPORATION, Defendant-Appellee, M. S. Chambliss and C. L. Gibson, Intervening Plaintiffs-Appellants. |
Court | U.S. Court of Appeals — Sixth Circuit |
Sizer Chambliss, Chattanooga, Tenn., John A. Chambliss, Chambliss, Chambliss & Hodge, Chattanooga, Tenn., on brief, for plaintiffs-appellants.
Robert T. Keeler, Cincinnati, Ohio, Taft, Stettinius & Hollister, Cincinnati, Ohio, David W. Matthews, Cincinnati, Ohio, on brief; John P. Gaither, John T. Henniss, Witt, Gaither, Abernathy, Caldwell & Wilson, Chattanooga, Tenn., of counsel, for defendant-appellee.
Before WEICK, Chief Judge, EDWARDS, Circuit Judge, and McCREE, District Judge.
This appeal was brought by two intervening plaintiffs when the original plaintiffs in this class action declined to prosecute the appeal. The intervening plaintiffs appear to have identical interests with the original plaintiffs and questions of fact and law in common. Although no formal order granting intervening plaintiffs' motion to intervene was ever entered, plaintiffs appear to have been proper parties for such intervention (Fed.R.Civ.P. 24(a) (2) and 24(b)).1
Further, in considering and deciding intervening plaintiffs' motion to reconsider the order quashing service, the court below apparently treated them as parties. Under these circumstances we will regard the District Judge's action as an implied grant of leave to intervene, and hence deny the motion to dismiss the appeal.
The appeal sought is from the dismissal of the above-styled action. The jurisdictional issues in this litigation were previously passed on by this court in another appeal. Smartt v. Coca-Cola Bottling Corp., 318 F.2d 447 (C.A.6, 1963).
The District Judge who granted the motion to dismiss (dealing with a statute newly cited by plaintiffs in the instant case) held:
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