Opinion
No. 2826.
April 6, 1934.
Appeal from the District Court of the United States for the District of Massachusetts; James Arnold Lowell, Judge.
Suit by the Utah Radio Products Company and others against Reuben T. Boudette and others. From an interlocutory decree, plaintiffs appeal.
Decree vacated and case remanded.
Herbert A. Baker, of Boston, Mass., for appellants.
George K. Woodworth, of Boston, Mass., for appellees.
Before WILSON and MORTON, Circuit Judges, and LETTS, District Judge.
The interlocutory decree of the District Court entered herein April 12, 1933, is vacated and this case remanded to that court for further proceedings, in accordance with law. The court does not pass upon the sufficiency of the moving papers or the opposing affidavits as challenged by the assignments of error Nos. 1 and 2. The District Court erred in not granting appellants' motion to dissolve the preliminary injunction as it should not have been issued except upon compliance with the provisions of section 382, title 28 USCA. This is so, even if the appellees could otherwise justify, from the moving papers presented, the granting of a preliminary injunction as a proper exercise of judicial discretion.
The decree of the District Court is vacated and the case is remanded to that court for further proceedings in accordance with law; neither party recovers costs of appeal.