(dissenting).
I am glad to note, in the opinion of the majority denying the motion for rehearing, the emphasis on the fact: that the case was not one for summary judgment; and that the reversal of the summary judgment is for the purpose of having the case tried out on its merits and without any intent or purpose to control the judgment of the district judge on such a trial as to whether the evidence is sufficient to justify the submission of the case to the jury. I am still of the opinion, however, that the case was one for summary judgment and that the judgment of the district judge was right and ought to stand.
I must, therefore, dissent, even though I think the opinion of the majority on rehearing makes it plain that the reversal is based upon the procedure employed in bringing it to an end rather than upon the merits of the litigation.
I respectfully dissent.