
    McCLINTIC-MARSHALL CO. v. IBOS et al.
    (Circuit Court of Appeals, Fifth Circuit.
    April 17, 1916.)
    No. 2898.
    In Error to the United States District Court for the Eastern District of Louisiana; Rufus E. Foster, Judge. Action at law by John Ibbs against the MeOIintic-Marshall Company, with John B. O’Leary as interpleader. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Richard B. Montgomery and Gustave Lemle, both of New Orleans, La., for plaintiff in error.
    P. M. Milner, Armand Romain, and T. Semines Walmsley, all of New Orleans, La., for respondents.
    Before PARDEE and WALKER, Circuit Judges, and MAXEY, District Judge.
   PER CURIAM.

Assuming that under the Louisiana practice, in a suit for damages for a tort, the defendant may have a right to a call in warranty (see Muntz v. Algiers Ry. Co., 114 La. 438, 38 South. 410), we are of opinion (1) that the motion to dismiss the writ should be overruled; and (2) that on the case made by the call in warranty against John B. O’Leary the exception of no cause of action was well taken and the call properly dismissed. This leads to an affirmance of the judgment of the trial court. However, in order that the plaintiff in error may not be prejudiced hereafter in asserting any-rights that may have grown out of the correspondence referred to in the call in warranty, we think the judgment of the trial court should be amended by adding to the same “without prejudice,” and, as so amended, the judgment of the District Court is affirmed, with costs.  