
    In re AQUA SYSTEMS, Inc.
    No. 8467.
    Circuit Court of Appeals, Fifth Circuit.
    June 15, 1937.
    Alfred C. Kammer, of New Orleans, La., for petitioner.
    Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.
   PER CURIAM.

This is an application for leave to file a petition for writs of prohibition and mandamus directed to the United States District Court for the Panama Canal Zone, to prohibit a new trial to a jury in a case entitled John Kodakoski v. Aqua Systems, Inc.; and to order the court to enter judgment in favor of Aqua Systems, Inc., on the mandate of this court. The mandate reversed a judgment in favor of Kodakoski, plaintiff in a suit to recover damages for personal injuries, and remanded the case for further proceedings not inconsistent with the opinion rendered. 88 F.(2d) 395.

The case was originally tried to a jury and the reversal was for error in denying a motion for a directed verdict for defendant. Putting aside, without discussion or decision, the question of whether we have authority to order a judgment entered in the District Court without a new trial, it is apparent that we did not do so in the former proceedings. The District Court correctly interpreted our mandate, under which, by necessary implication, plaintiff is entitled to a new trial before a jury. Of course, if no additional and better evidence to sustain the allegation of negligence is offered, it will be the duty of the District Court on a new trial to direct a verdict for defendant. Error in that respect or otherwise may be corrected on appeal. It is elementary that mandamus will not issue to control any action of the trial court to which error may be assigned and relief had upon appeal.

The petition is denied.  