# Marietta Page v. Telford Work

> Court of Appeals for the Ninth Circuit · May 3, 1961 · 290 F.2d 323

URL: https://www.frixlaw.com/law-library/cases/9447930

## Case

- **Full name:** Marietta PAGE, Appellant, v. Telford WORK Et Al., Appellees
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** May 3, 1961
- **Citations:** 290 F.2d 323
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Chambers, Barnes, Jertberg
- **Cited by:** 98 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Modified by C. A. Page Publishing Co., Inc., a Corporation v. Telford Work, 290 F.2d 334 (1961).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9447930

## How later opinions describe it (automated extraction)

- affirming grant of summary judgment to defendants in an antitrust case

## Opinion text

On Petition for Rehearing.
PER CURIAM.
An opinion was filed herein on March 8, 1961, affirming the judgment of the district court dismissing for want of federal jurisdiction a civil antitrust action.
On petition for rehearing, appellant asserts that we erred in our characterization of the procedural issues on appeal and in respect to the application of the rules of law stated in our opinion. We have reread the voluminous record in this case and concede that we may have been in error in holding that appellant, in effect, consented to a separate trial before the court on the separated issue of jurisdiction. This conclusion, however, does not require a reversal of the judgment.
Appellees made a timely motion for a summary judgment on the issue of jurisdiction. If the district court correctly concluded that appellees were entitled to a summary judgment, appellant cannot complain of the deprivation of a jury trial. Fidelity & Deposit Co. of Maryland v. United States, 1902, 187 U.S. 315 , 23 S.Ct. 120 , 47 L.Ed. 194 ; Lindsey v. Leavy, 9 Cir., 1945, 149 F.2d 899 ; Moore, Federal Practice, Vol. 6, § 56.06, pages 2037-2042. Appellees were entitled to a summary judgment on the question of federal jurisdiction if no genuine issue existed as to any material fact and if the moving party was entitled to a judgment as a matter of law. Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A.
Two different theories of interstate commerce were presented to the district court on the cross motions for summary judgment. The district court rejected appellant’s theory and adopted appellees’ theory. We affirmed for the reasons given in our opinion. Thus, the only question now before us is whether under appellees’ theory of interstate commerce a genuine issue existed as to any material fact. We are not concerned with the existence of a fact issue under appellant’s theory of interstate commerce, which was rejected by the district court. See Walling v. Richmond Screw Anchor Co., 2 Cir., 1946, 154 F.2d 780 ; Amaya v. Stanolind Oil & Gas Co., D.C.S.D.Tex.1945, 62 F.Supp. 181 , affirmed 5 Cir., 1946, 158 F.2d 554 ; Moore, Federal Practice, Vol. 6, § 56.13, page 2092. We are satisfied from our reexamination of the record that there exists no genuine issue as to any material fact under appellees’ motion for a summary judgment and that appellees were entitled to a judgment of dismissal of the action as a matter of law.
We have re-examined appellant’s contentions that we erred in the application of principles of law, but are not persuaded to change the views expressed in our opinion.
The petition for rehearing is denied.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9447930. Public record. Not legal advice.