The opinion
CLARK, Chief Judge
(concurring).
I concur in the result reached, but still believe that emphasis on intent without recognition or notice of the crucial role of the federal rule in making that intent operative misstates the problem. It is Hamlet with the Prince’s role omitted. Stella and the other stockholders were *117 pursuing a right of action which they had (whether one adds “in right of the corporation” or not). Unless they consented or lost on a judgment on the merits — actually they could not have consented less and there was no trial — the only way they could be eliminated was by operation of F.R. 23(e), 28 U.S.C., in the way stated in my original opinion. The opinion herewith has to get its authority from the rule’s operation; so to recognize now would avoid confusion in the event of future resort to the decision as a precedent.