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BERG v. MERCHANT

No. 4610.

16 F.2d 1013 (1927)

May BERG and Frederick C. Raichley, Plaintiffs in Error, v. Harry J. MERCHANT et al., Defendants in Error.

Circuit Court of Appeals, Sixth Circuit.

January 14, 1927.

Attorney(s) appearing for the Case

I. J. Ringolsky, of Kansas City, Mo., and Harold W. Fraser, of Toledo, Ohio (Ringolsky, Friedman & Boatright and Johnson & Lucas, all of Kansas City, Mo., Wm. P. Maloney, of Marion, Ohio, and Fraser, Hiett, Wall & Effler, of Toledo, Ohio, on the briefs), for plaintiffs in error.

John H. Bartram and Fred E. Guthery, both of Marion, Ohio (John H. Bartram, J. H. Eymon, Mouser, Young & Mouser, and Guthery, Strelitz & Guthery, all of Marion, Ohio, on the brief), for defendants in error.

Before DENISON, DONAHUE, and MOORMAN, Circuit Judges.

PER CURIAM.

An application for rehearing insists that our opinion is in direct conflict with that of the Ninth Circuit Court of Appeals, in Atchison Co. v. Phillips, 176 F. 663. On the contrary, we think a comparison of the two opinions discloses no fundamental conflict, and serves to emphasize the point upon which our opinion is intended to rest. The Atchison Case does hold that where a state statute creates a right of action and a remedy by suit, and directs that...

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