Transit Casualty Company v. Security Trust Company , 396 F.2d 803 ( 1968 )

396 F.2d 803

TRANSIT CASUALTY COMPANY et al., Appellants,
v.
SECURITY TRUST COMPANY et al., Appellees.

No. 25249.

United States Court of Appeals Fifth Circuit.

June 28, 1968, Rehearing Denied Aug. 29, 1968.

Paul R. Larkin, Jr., Samuel J. Powers, Jr., James E. Tribble, Blackwell, Walker & Gray, Miami, Fla., for appellants.

James A. Dixon, Miami, Fla., Brooks P. Hoyt, Tampa, Fla., Reginald L. Williams, Sam Daniels, Dixon, DeJarnette, Bradford, Williams, McKay & Kimbrell, Miami, Fla., for appellees.

Before WISDOM and COLEMAN, Circuit Judges, and COMISKEY, District judge.

PER CURIAM:

1

The appellants brought this suit as a class action. Before the court reached a determination of appellants' right to maintain this suit as a class action, the district judge ordered appellants to 'amend their complaints so as to include as parties plaintiff all members of the alleged class who have retained counsel for the plaintiffs to represent them in these two cases.' Ten months later the district judge dismissed appellants' suit with prejudice when appellants failed to comply with this order. Rule 41(b) F.R.Civ.P.

2

We agree with the order of dismissal by the district court, but vacate that part of the order making the dismissal with prejudice and remand with instructions to enter the order without prejudice.