(dissenting).
On the former appeal we held that Mor-ing was not an indispensable party to this suit, and I agree that he did not become such by reason of the amended complaint that prayed for an accounting. Therefore, I cannot see any reason to consolidate this suit with that of Broocks v. Moring or to stay it until the latter is adjudicated. There are numerous reasons against this procedure, one of which is that it is now too late to invoke a rule1 that was intended “to avoid unnecessary costs or delay.”
This suit was filed September 22, 1941; Broocks v. Moring was filed September 27, 1941. To consolidate the two after they have been pending four-and-a-half years, tried twice, and appealed twice, would promote 'rather than avoid delay, and would impose costs and expenses upon appellees. Without doing this, equity has ample power to protect a litigant from the “possible hardship” of a double payment.
I find no basis for the contention that the court below mistakenly thought its finding of fraud was required by the mandate of this court. The court said that its conclusion of law was so required; and clearly that is what the court meant. As to the finding of fact, it would be hard to improve upon the clarity of the Judge’s statement, p. SO of record: “I am of the opinion that the finding of fact heretofore made is fully supported by the record and fully covers all controverted points.” In the next paragraph, after he had left the subject of fact-finding, and when he was referring to conclusions of law, the Judge said: “The conclusion of law I think is required to be made by the mandate of the Circuit Court of Appeals in its decision in this case.”
Rule 42 of Federal Rules of Civil Procedure. Of. 28 U.S.C.A. § 734, Revised Statutes, § 921; Act of July 22, 1813, c. 14, § 3, 3 Stat. 21. So far as this statute differs from the rule, the statute is modified to conform to the rule.