(concurring specially).
I concur in the reversal of the judgment but not in the reasons given for it.
It seems clear to me that, in the statement of the point to be relied on on appeal, appellant properly stated the real issue in the case, that plaintiff having requested leave to file and tendered for filing a second amended complaint, which, whatever might be said of thé first amended complaint, did state a good cause of action, the district judge erred in his order entered some two months thereafter dismissing plaintiff’s suit. In *594Copeland Motor Co. v. General Motors, 5 Cir., 199 F.2d 566, the precise question here presented was determined by this court in favor of the position taken by appellant in his statement of the points to be relied on on appeal.
With deference, it seems clear to me that in ignoring the dominant and decisive feature of the case, that the second amended original complaint, which plaintiff had tendered in substitution of the abandoned first amended original complaint, stated a cause of action, to struggle instead with the very doubtful question, whether the abandoned and superseded complaint did, the majority has labored a matter no longer in the case and having no significance on this appeal or in the future conduct of the case.
Dissenting therefore from the opinion as completely unresponsive to the issue presented for determination, I concur in the reversal as far as it goes, but I dissent from the failure of the opinion to determine that the second amended petition did clearly state a good cause of action and from its failure to couple the remand with directions to consider the second amended petition as duly filed as of the date of its tender.