James Frank Palmer v. Morris B. Morris

341 F.2d 577

James Frank PALMER, Appellant,
v.
Morris B. MORRIS et al., Appellees.

No. 21368.

United States Court of Appeals Fifth Circuit.

February 15, 1965.

William W. Halper, Miami Beach, Fla., for appellant; Martin Horwitz, New York City, of counsel.

Don G. Nicholson, Miami, Fla., for appellees.

Before TUTTLE, Chief Judge, RIVES, Circuit Judge, and DYER, District Judge.

PER CURIAM:

1

While the stockholders' derivative suit was pending, sufficient other stockholders joined with the original plaintiff, Palmer, to cause the corporation "Altex" to desire to join in the litigation against other defendants. Thereafter the trial court entered an order realigning Altex as a plaintiff and dismissing Palmer as a plaintiff.

2

There was no justification for eliminating Palmer, the stockholder, who had commenced the action, merely because the corporation belatedly sought to join in his action. Cf. Twentieth Century Fox Film Corp. v. Jenkins, 7 F.R.D. 197, S.D.N.Y.1947.

3

There is no merit in appellees' motion that since Altex has now filed for bankruptcy, the case should be stayed until the trustee determines whether he wishes to continue the suit in Altex's behalf. Meyer v. Fleming, 327 U.S. 161, 66 S. Ct. 382, 90 L. Ed. 595.

4

The order of dismissal was error. It is, therefore, reversed and the cause is remanded for further proceedings.