Cover v. Schwartz

I concur in the order amending the opinion. Certainly my brethren should be allowed to draw such sustenance as they can for their admittedly technical ruling3 from the plaintiff’s persistence in sticking by the legal theory of the case which he developed after the record was made up in preference to returning to the at least equally available theory upon which the case was tried below. Possibly a change in strategy might have been the shrewder approach; at any rate, we are now spared the pain of deciding whether a petition for rehearing can restore to us that jurisdiction of which a party’s…