Opinion
No. 10654.
Argued January 7, 1952.
Decided January 8, 1952.
Paul Ginsburg, Pittsburgh, Pa., for appellants.
John B. Doyle, New York City, for plaintiffs.
James F. Brown, Jr., Allentown, Pa., for the United States.
Before BIGGS, Chief Judge, and GOODRICH, Circuit Judge.
Vladimir Behr and Anne Livingston Behr filed notice of an appeal from an order of the court below filed on December 12, 1951 which, inter alia, denied their motion for leave to intervene as parties plaintiff. A previous motion for leave to intervene made by the Behrs also was denied by the court below and on appeal that decision was affirmed by this court. 190 F.2d 675. See 186 F.2d 1023, Appeal of Ginsburg. The case is presently scheduled for trial in the court below on Monday, January 14, 1952. The plaintiffs, Hirshorn and others, have moved to docket and dismiss the Behrs' appeal. The Behrs, through their counsel, in open court on the argument on the motion to docket and dismiss the appeal, suggested and agreed that the appeal should be considered upon the merits at the same time that this court gave consideration to the merits of the motion to docket and dismiss. We adopt the suggestion.
The present application for leave to intervene in the court below is without merit, like the previous application, and like it was correctly denied by the trial court. D.C.W.D.Pa., 101 F. Supp. 549. The additional facts alleged by the Behrs to support the present application are irrelevant to the issue presented and are of such slight consequence as not to merit discussion here.
Since the order appealed from was an appealable order we will not dismiss the appeal. We will, however, order the appeal docketed and we will affirm the order complained of. We will further direct that the mandate go down forthwith. The trial set for January 14th should be proceeded with without further delay. The costs of the appeal will be charged against the Behrs.