604 F.2d 317

James H. KING and Hazel King, husband and wife, Plaintiffs-Appellees,
v.
FORD MOTOR COMPANY, a Delaware Corporation,
Defendant-Third-Party Plaintiff-Appellant,
v.
FLXIBLE SOUTHERN COMPANY, INC., a corporation, Third Party Defendant.

No. 76-2528.

United States Court of Appeals,
Fifth Circuit.

Sept. 14, 1979.

Michael D. Knight, Mobile, Ala., for defendant-third party plaintiff-appellant.

Wm. D. Melton, Evergreen, Ala., Richard Bounds, Mobile, Ala., for plaintiffs-appellees.

Appeal from the United States District Court for the Southern District of Alabama.

Before RONEY, TJOFLAT and HILL, Circuit Judges.

BY THE COURT:

1

IT IS ORDERED that appellees' motion for assessment of a penalty of $35,000 against the appellant is granted pursuant to Ala.Code § 12-22-72 (1975) and Proctor v. Gissendaner, 587 F.2d 182 (5th Cir. 1979).

2

JAMES C. HILL, Circuit Judge, specially concurring:

3

Because this panel is bound by the earlier decision of our court in Proctor v. Gissendaner, 587 F.2d 182 (5th Cir. 1979), I concur. However, I entertain serious doubt that the legislature of a state may be properly considered as having the power to place conditions upon the right to appeal from a United States District Court to the United States Court of Appeals. It may be that some penalty upon an unsuccessful appellant is an appropriate measure designed to discourage appeals taken for delay. I take no position on that. However, if measures of this sort are to be applied to litigants in the federal system, I apprehend that it would be better that they be established by the Congress. However, we are bound, and only the en banc court could change the rule in this circuit. Our panel cannot. Therefore, as stated, I concur.