(dissenting).
The judgment appealed from did not dispose of or even attempt to deal with the merits of plaintiffs’ claims against the defendants. Neither did it attempt to place any barrier in the way of plaintiffs suing the defendants in the state court on the claims sought to be asserted in the federal court, nor any in the way ■of their again suing the defendants in the federal court on any of their claims, except those for the cancellation of instruments on which the rights of others not parties to the suit depended.
What and all that is in question here then is whether, by belatedly offering in this Court what they should have offered to do in the court a quo, to amend their complaint to eliminate such claims for cancellation, they may put the district judge in error and the defendants to the cost of this appeal.
Of the clear opinion that in simple justice to the district judge and to the defendants they cannot do this, I thus set briefly down my reasons for dissenting.
That the plaintiffs had and have the right, without making additional parties, to sue the defendants in the federal court for their fraud and require them to disgorge their alleged ill gotten gains, the district judge did not, and no one could or can, deny. That plaintiffs did not have the right to sue the defendants alone in the federal court for cancellation of instruments on which the rights of others depend, I had thought, until the opinion of the majority put the district judge in error for following this Court’s teachings, settled by the course of decision here culminating in our en banc decision in Hudson v. Newell, 5 Cir., 172 F.2d 848, Id., 5 Cir., 174 F.2d 546.
If the plaintiffs had, in response to the motion, offered below to amend their complaint to eliminate their claims for cancellation or to affirm the validity against such claims of the titles and rights which would or might otherwise be affected by such claims, the district judge could not, nor would he have refused them permission to do so.
In my considered opinion plaintiffs cannot, as the majority has held that they can, by belatedly offering in this Court to do so, if this Court will reverse the judgment, which, for default of their offer to amend, was rightly entered, put the district judge in error for doing his duty and the defendants to the cost of this appeal for insisting that the district judge do what he ought to have done.
I would affirm the judgment with costs against appellants without prejudice of *216course to plaintiffs’ right, if they are so advised, to. refile against the defendants in the federal court a suit for fraud and an accounting to plaintiffs for their alleged ill gotten gains.