# De Loach v. Crowley's, Inc.

> Court of Appeals for the Fifth Circuit · May 25, 1942 · 128 F.2d 378

URL: https://www.frixlaw.com/law-library/cases/9650846

## Case

- **Full name:** DE LOACH Et Al. v. CROWLEY’S, Inc.
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** May 25, 1942
- **Citations:** 128 F.2d 378; 1942 U.S. App. LEXIS 3588
- **Precedential status:** Published
- **Opinion:** Concurrence by Holmes
- **Judges:** Sibley, Holmes, Mc-Cord
- **Cited by:** 89 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9650846

## Opinion text

HOLMES, Circuit Judge
(specially concurring) .
I concur in the result but not in all the-language in the opinion. I think the statement, that cases are generally to be tried on the proofs rather than the pleadings, is-unnecessary and apt to be misleading. It is true that demurrers are abolished, but there is nothing in the Federal Rules of Civil Procedure to keep issues of law from-being presented by the pleadings. The motion to dismiss may serve the' same purpose as a demurrer formerly did.
I think the following statement in the opinion is also pure dictum: “Expensive trials of meritless claims are sought to be avoided in the main by pretrial and summary judgment procedures.” There was-no motion for summary judgment in this case, and there is nothing in the record to indicate that a summary judgment would be proper. Then why suggest it ?

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9650846. Public record. Not legal advice.