O'BRIEN et al. v. FACKENTHAL

O’BRIEN et al. v. FACKENTHAL. (Circuit Court of Appeals, Sixth Circuit. November 14, 1922.) No. 3708. Appeal and error (@=»78i (4)- — Appeal dismissed when question becomes moot. Where, pending appeal from an order granting a preliminary injunction in a case growing out of an employes’ strike, the strike is settled, the appeal will be dismissed, though the suit remains for trial on other issues. Appeal from the District Court of the United States for the Eastern Division of the Northern District of Ohio; D. C. Westenhaver, Judge. _ _ Suit in equity by the Central Metal Products Corporation and Joseph D. Fackenthal, its ancillary receiver, against William O’Brien, individually and as secretary of Bocal No. 65 and vice president of the Amalgamated Sheet Metal Workers’ International Alliance, and others. From an order granting a preliminary injunction, defendants appeal. Appeal dismissed. For opinion below, see 278 Fed. 827. J. Paul Thompson and W. J. Dawley, both of Cleveland, Ohio, for appellants. Walter Gordon Merritt, of New York City, and Stanley & Horwitz, of Cleveland, Ohio, for appellee. Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges. <2r=aFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes [MAJORITY — KNAPPEN, Circuit Judge.] KNAPPEN, Circuit Judge. This is an appeal by defendants from an order awarding temporary injunction in a case growing out of an employés5 strike. It appears from the statements of counsel for the respective parties in open court that since the appeal was taken the strike has terminated and the acts enjoined by the order in question have ceased. The question of. the propriety of the temporary injunction has thus become moot, and the appeal cannot properly be retained for the purpose of deciding questions which may arise between the parties hereto or between other parties. It appears that in the main suit permanent injunction and damages are sought by plaintiff, and that a trial of those issues in that suit is contemplated. In the exercise of our duty to malee such order as is “most consonant to justice,” in view of the condition and circumstances of this case, the appeal from the order of temporary injunction now here is dismissed, without determining the merits thereof, and without prejudice to.and without passing upon the rights of the parties otherwise in the pending suit, or to the hearing and trial of such other issues therein. As neither party is in fault for the ending of the controversy relating to the propriety of temporary injunction, no award of costs on this appeal will presently be made, but such costs will abide the final decree in the main suit in the court below and be covered thereby. Each party is at liberty to withdraw from the files of this court such copies of the printed record and briefs as they respectively have caused to be filed herein.