(concurring).
What persuades me to concur here is the fact that the cause is remanded for finding upon a stated issue on the basis not only of the present record, but of “any additional evidence the parties may offer.” The odd circumstance here is that the judgment below was entered upon a motion for summary judgment. Yet our opinion remands for determination of a stated issue, which means, necessarily, that there is and was a “genuine issue as to any material fact”. Since this genuine issue existed, the court was without authority to grant a summary judgment. Notwithstanding the existence of this genuine issue, there was no trial in the sense of Rule 43(a), 28 U.S. C.A. There was no testimony of witnesses “taken orally in open court”. The depositions used in support of the motions for summary judgment were taken merely for discovery purposes. There was no direct or cross-examination in the ordinary sense, nor opportunity for the judge to determine the credibility of witnesses from his observation of them.
It is true that both parties moved for summary judgment, but this circumstance does not enlarge the right to a summary judgment. F.A.R. Liquidating Corp. v. Brownell, 3 Cir., 209 F.2d 375, 380. The trial court’s opinion recites that when the motions were argued the parties stipulated that they had no further evidence to offer. But this stipulation, as stated, was only for the purpose of the pending motions. When appellants’ motion was overruled, their stipulation was no longer effective. “We do not think that the concession continues over into the Court’s separate consideration of appellee’s motion for summary judgment in his behalf after appellants’ motion was overruled.” Begnaud v. White, 6 Cir., 170 F.2d 323, 327.
Appellants therefore had the right to argue, below and here, that they were entitled to a trial, in the sense of Rule 43(a), upon the issue which we now remand for hearing. They did not do so. My doubts as to whether notwithstanding this we ought to notice the error in granting the motion are resolved by my knowledge that upon remand the court will have an opportunity to resolve the issue upon something other than mere transcripts of depositions and other documents and records.