DIXI-COLA LABORATORIES, Inc., et al. v. COCA-COLA CO., 146 F.2d 43

PER CURIAM. This is a motion for leave to file a supplemental bill of complaint in the ■court below in order to secure relief with respect to matters alleged to have occurred subsequent to the decree granting an injunction and ordering an accounting, which was affirmed by this court in a decision rendered January 11, 1941. Dixi-Cola Laboratories et al. v. Coca Cola Company, 4 Cir., 117 F.2d 352.

If there were any conflict between the decision of this court and the further relief sought by the supplemental bill, it would doubtless be necessary for the permission of this court to be obtained to the filing of the bill, Rosemary Mfg. Co. v. Halifax Cotton Mills; 4 Cir., 266 F. 363; Suhor v. Gooch, 4 Cir., 248 F. 870; and whether permission would be granted or not would depend upon circumstances which we need not go into here. Certainly a rehearing of matters decided upon the appeal could not be had by the simple device of filing a supplemental bill or making a motion for leave to file same.

In this case, however, further relief in conflict with the decision of this court is .not sought, but relief in accordance with the decision, based, however, upon matters that have occurred since the entry of the decree which we affirmed. In such case, we regard the law as well settled that whether the supplemental bill shall be allowed to be filed or not is a matter resting in the sound discretion of the District Court, and that the leave of this court to apply to the District Court for permission to file same need not be obtained. See Federal Rules of Civil Procedure, rule 15(d), 28 U.S.C.A. following

section 723c. City of Texarkana v. Arkansas, Louisiana Gas Co., 306 U.S. 188, 203, 59 S.Ct. 448, 83 L.Ed. 598; Otis Elevator Co. v. 570 Building Corp., D.C., 35 F.Supp. 348. The motion will be denied without prejudice to the right of movant to make application to the District Court for leave to file the supplemental bill. Motion denied.