George Peterson v. Herman S. Moore , 267 F.2d 496 ( 1959 )

267 F.2d 496

George PETERSON, Appellant,
v.
Herman S. MOORE.

No. 12863.

United States Court of Appeals Third Circuit.

Argued May 28, 1959.
Decided June 5, 1959.

John P. S. O'Connor, Pittsburgh, Pa. (Evans, Ivory & Evans, Pittsburgh, Pa., on the brief), for appellant.

Joseph J. Lee, Clearfield, Pa. (Sherman T. Rock, Andrew C. Van Gorder, Paul, Lawrence & Rock, Pittsburgh, Pa., on the brief), for appellee.

Before GOODRICH, KALODNER and STALEY, Circuit Judges.

PER CURIAM.

1

This is an appeal from a judgment dismissing an action in tort for want of prosecution. The case was here once before, but we dismissed because there was no final judgment, but instead an outstanding order for a new trial. 3d Cir., 1958, 254 F.2d 853. We think that the subsequent proceedings may have been influenced by a misunderstanding on the part of the plaintiff or his counsel, and that the ends of fairness will be best served by vacating the judgment entered under Rule 41(b) F.R.Civ.P., 28 U.S.C.A., and sending the case back for a new trial if the plaintiff so desires.

2

The judgment of the district court is vacated and the case remanded.