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Thomas v. Honeybrook Mines Inc.

August 5, 1970

EMMETT THOMAS ET AL., APPELLEES
v.
HONEYBROOK MINES, INC. ET AL., APPELLANTS



428 F.2d 981.

Author: Per Curiam

Appellees have filed a petition for rehearing by the court en banc which, except in one respect, raises no questions not already considered. That one respect is appellees' contention that the propriety of award of counsel fees by the intervenors was decided by the district court and this court on affidavits without an evidentiary hearing. The panel which heard this appeal was left with the impression that both sides consented to the submission of the fee question on affidavits. Upon review of the entire record, we conclude that there was no waiver by appellees of the right to an evidentiary hearing on any disputed fact issues. The opinion of court is, therefore, amended to provide that the order of the district court denying intervenors' motion to direct the payment of its counsel fees will be reversed and the case will be remanded to the district court for a hearing on the fee application. In that hearing the district court should decide whether or not to grant such application, and the amount thereof, in the light of the legal principles announced in the opinion of the court. The petition for rehearing will be denied.

19700805

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