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FIDELITY PHILADELPHIA TR. CO. v. PIOCHE MINES

Nos. 76-3180, 76-3443.

587 F.2d 27 (1978)

FIDELITY PHILADELPHIA TRUST COMPANY, Appellee, v. PIOCHE MINES CONSOLIDATED, INC., Appellant.

United States Court of Appeals, Ninth Circuit.

Rehearing Denied November 27, 1978.

Attorney(s) appearing for the Case

T. David Horton (argued), Battle Mountain, Nev., Francis T. Cornish (argued), Susanville, Cal., for appellant.

Richard P. Brown, Jr. (argued), of Morgan, Lewis & Bockius, Philadelphia, Pa., Willard P. Norberg (argued), of Ackerman, Johnston, Norberg & Parkinson, San Francisco, Cal., for appellee.

Before BARNES and GOODWIN, Circuit Judges, and MUECKE, District Judge.

MUECKE, District Judge:

This appeal involves a counterclaim filed by appellant, Pioche, against appellee, Fidelity, which was originally filed in 1940 and has been pending in its final form since 1956. That counterclaim was dismissed by order of the district court, and it is from that order that this appeal arises.

Fidelity filed their first motion to dismiss the counterclaim November 1, 1960 alleging lack of prosecution as four and one-half years had passed...

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