*1 EQUIPMENT CO. COMFORT

STECKLER. CO., Inc.

BURCH MFG.

STECKLER. 11072, 11073.

Nos. Appeals,

United States Circuit. Seventh

April Mo., Madden, City, Kansas John G. Underwood, Ill., Ru

Thomas I. Iowa, Lowell, Moines, dolph Des L. Meroni, Chicago, Ill., Charles F. Charles Mo., Rafter, Jr., City, Madden Kansas T. Winston, Mo., Burke, City, Kansas & Strawn, Ill., Towner, Chicago, Black & counsel, petitioners. Washington, Swecker, Preston J. respondent. C., for D. Judge, MAJOR, Before Chief SCHNACKENBERG, LINDLEY and Judges. Circuit Judge. SCHNACKENBERG, Circuit granted, to leave Comfort Pursuant Company, corpo- a Missouri having place ration, principal its of busi- City, Missouri, herein- in Kansas ness “Comfort”, and referred to as Manufacturing Company, Inc., an Burch having corporation, principal Iowa Dodge, place in Fort Iowa of business Awning Dodge (formerly Fort Tent & Co.), referred to “Fort hereinafter Dodge”, each filed in this court a naming Judge tion for mandamus Wil- Steckler of the United States liam E. Southern Court for the District District Indiana, Indianapolis Division, as re- spondent.

Respondent filed motions petitions, petition- motions to which both filed answers. ers Rulings upon the motions to dismiss hearing pending withheld cases on the merits. these *2 argu- Respondent Upon filed answers to the fifteen of witnesses. oral arguments pro- heard be- ment tions. were before this court Oral box, by (and duced fore this court. said counsel not disputed) respondent to contain what single proceedings have the These two had before him at said trial. The box obtaining purpose or- review of an custody and its contents were left in the over- district court der entered inspection, of this court for its by ruling Fort and Comfort motions reveals the contents to be as follows: Dodge an counter- amended separate pieces documentary evi- cross-complaint by The filed claim and transcript testimony, dence and a of oral Inc., Company, Original Cab Tractor consisting pages, deposi- of about 750 seeking relief, laws anti-trust consisting tions pages, of about 750 of America and the United States interrogatories 45 written and 79 an- act, declaratory judgments Com- thereto, totaling pages, swers both as Dodge Company, fort, and Cab-Ette Fort pleadings well as the filed in the district amended defendants named as during period years. court of five cross-complaint. The and counterclaim and cross-com- counterclaim amended order, With respondent the aforesaid plaint instituted were filed pages consisting filed findings by Clyde Clapper court E. said district of fact and 7 conclusions of law. The Flora, plaintiffs, and Lee fourth conclusion of law is that Comfort Original Company, and Tractor Cab Inc. Dodge and Fort transact business in the Stanley Williams, defendants. Comfort Southern District of Indiana within the Dodge introduced and Fort were thus meaning requirements section being by defendants made the case Clayton act, 15 U.S.C.A. and cross-com- counterclaim amended they engaged prior were so at and Dodge plaint. were and Fort Comfort filing of the amended counterclaim copy a summons and a each served with cross-complaint herein, they and that and cross- the amended counterclaim were each served in the districts complaint is district where each found, to-wit, where the West- principal place domiciled has its ern District of Missouri and the North- Thereupon, Fort Comfort and business. Dodge Iowa, ern District of in which each is filed said motions to dismiss respectively domiciled. cross-com- amended counterclaim and pro- The order under attack in these following grounds: alleging plaint, ceedings is not order. Section proper venue does not exist because 1292(1), title 28 of the United States not residents cross-defendants are appeals Code authorizes from certain Indiana, District of are not Southern interlocutory orders. The order un- now therein, found are not inhabitants interlocutory der consideration an agent thereof, have do not therein order from which an is author- meaning within the of section 4 of the ized said section. Here the extra- Clayton act, do not ordinary relief afforded writ of man- transact therein. sought obtaining damus is means Respondent tried the issue of venue in interlocutory an immediate review of an open dep- oral evidence and admittedly subject order which to re- ositions, pre- as well as the affidavits by appeal view after the district court dismiss, the motions to heard sented with principal shall have finished with the argument and considered oral written lawsuit. by counsel, findings briefs filed argue fact and conclusions of law and entered that manda question, now in over- order mus reason, among this situation for improp- others, motions to dismiss for ruled the that the order in jurisdictional ruling. venue. Included con- involved er evidence by respondent testimony made, was the The same sidered contention was without Forman, analyzed Airlines must be relation success in If, Cir., rationalization. exercising professional skill said: through *3 working a is not that difference alone “But decides, process this sort a court enough peremptory a writ to make juris- rightly wrongly, that it has or appropriate. Ex See diction, unlikely that the it most Co., 1921, 255 U.S. R. I. & P. R. judge peremp- will have merited that 275-276, 65 L.Ed. 631. tory reserved admonition which is challenged assumption or denial principally of abuse or for cases jurisdiction plainly so must be gross power.” misuse of wrong as to indicate failure com guided by prehend or refusal to be We the same are accord what unambiguous provisions said, stat a court then 204 F.2d at 233: settled law doctrine. ute or common “Finally, emphasize we that there If a rational and substantial technicality in is much more than support of can be made in great very appel reluctance of ruling, questioned jurisdictional employ late courts to mandamus or appropriate is not for man prohibition review decisions though prohibition damus or even in nor can later be reviewed reviewing on normal Procedurally, appeal. mal course so find We reversible error. extraordinary these remedies ac recently Pennsylvania held most judge himself, tions re Welsh, Turnpike Commission v. quiring personally him Cir., 1951, 188 F.2d Accord: and defend what he has done as a Therianos, Cir., Petition of judge. The fact that counsel for Hazeltine party prevailed in who has his Cir., 1948, Kirkpatrick, 3 165 F.2d judge’s appears court often 683.” change behalf does not the fact that very The facts in the indi instant cases real sense the hasty, peremp being cate put was no officer himself on trial. tory arbitrary by respondent, Beyond this, or action in order to state a but, contrary, amply appears normally cause of action it is neces lengthy open charge sary judge he conducted a trial in with arbi trary action, where he received usurpation evidence venue, disregard law, issue counsel’s considered obvious how .arguments drafting and arguing briefs and and considered ever counsel and analyzed applicable evidence and the peremptory a may sugarcoat arriving law at pill. a decision. The There is respond record before us indicates that procedure need such occasional conscientiously judg ent justification allegations. exercised his and for such deciding ment in judge subjected as to venue. But a should not be Whether he erred is not merely to an attack of this kind can be raised and decided in these man device for earlier review of an proceedings. interlocutory damus As the ordinarily court said order than considering permitted. a not parte Fahey, dissimilar situation Ex Forman, Cir., Airlines v. 332 U.S. 91 L. 230, page Ed. 2041.” language, leg- petitioners “The structure and Counsel for both and history spondent islative of statutes must be on the recent case of Bank- Casualty examined. Relevant Holland, ers Life & Co. v. doctrine must be considered. The U.S. decided Novem- interplay damage these factors must ber where a treble brought rationalized. The facts before the action under the Sherman seq., Clayton acts, 1 et im- and dismiss him proper venue, saying, the action for 15 U.S.C.A. corporation) (an petitioner insurance the United States District alleg- Florida, the Southern District acting “The is that in contention ing injure petitioner’s conspiracy ordering transfer motion and The named business. defendants legal powers he exceeded his Georgia the insurance commissioners jurisdic- this error ousted him of individual, Florida, one other tion. But run need not residing companies four insurance gauntlet of reversible errors. transacting Dis- the Southern *4 ruling on de- of law Georgia insurance trict of Florida. The by presented cisive of the issue Cra- personally (Cravey) was commissioner vey’s replication motion and the of Flori- in Northern served the District petitioner the made in the was quash summons da. to the He moved course of the of the court’s exercise improper him venue. and dismiss proper- to decide issues juris- judge had held that his court brought ly it. Ex diction of sioner, action and of the commis- the Co., 1913, 230 Steel Barrel but that venue was not 35, 45-46, 1007, 1010, U.S. thereupon laid. the action He ordered 1011, parte Roe, 57 Ex L.Ed. Cravey as to to severed and transferred 1914, 73, 70, 722, 234 U.S. Georgia the where Northern District of 723, 58 L.Ed. 1217. Its decision sought Cravey resided. Petitioner then against petitioner, even if erroneous a writ Appeals Court of of mandamus from the pass upon —which we do not —in- compel judge to vacate to the judicial power, volved no abuse of order, and set that the Court aside but Evaporated Ass’n, Roche v. Milk Appeals dismissed the supra 21, 938, [319 S.Ct. mandamus, Su- 1185], L.Ed. and is reviéwable preme Court certiorari. appeal judgment. after final If we reasoning applied advanced Speaking corporation of the insurance petitioner, every the tory then interlocu- (petitioner mandamus), Supreme wrong might order which is be said, page 346 U.S. at 74 S. reviewed under All Writs Act page Ct. at 1651(a)]. [28 The office “While it admits that the order a writ of larged of mandamus would be en- eventually ap be on reviewed actually to control the deci- peal judgment case, final sion the trial court rather than petitioner contends that insurmount used its traditional function procedural requiring able difficulties confining prescribed appeals from, of, and reversals jui'isdiction. strictly In circum- judgments final Florida both the scribing piecemeal Congress appeal, action and the severed action in must have realized that the course Georgia remedy specula that render judicial decision some interlocu- tive, inadequate ineffective tory orders be erroneous.” expense, preventing needless hard Casualty Life Bankers & Co. Hol- v. ship and inconvenience. supra, page land, says, Wherefore, it the extraordi page 148, sup- holds that S.Ct. appro nary writ mandamus is plementary conferred on priate. by Congress in the courts the All Writs opinion “We are only is meant to used Act be in of this case writ circumstances exceptional case where there is clear inappropriate.” “ was ‘usurpation of discretion or abuse judicial ” power’ then considered the motion of the sort The court held Cravey quash in De the summons Beers Consoli- ing States, obliged litigant, 325 U.S. Mines v. United dated personal L.Ed. obtain counsel to leave S.Ct. litigants post. held his defense The court discussed one Casualty Co. v. Holland before him. Life & These remedies should Bankers inconvenience or final trial these ing & U.S. ns even 1124, 1125, 89 L.Ed. page 944.” extraordinary writs cannot be used trial, United States Alkali 67 S.Ct. Ass’n Fahey, 1947, Casualty respondent’s ruling “But not such Evaporated disposition a substitute for be, petitioners may the district court. delay though must v. United it 1558, 1559, Co. 202-203, 65 S.Ct. a case. await an court, of the case Milk hardship established perhaps Holland, 346 in their hardship. States, 1945, 325 Ass’n, appeal, Ex succeed If on in Bankers Life 258, the correctness unnecessary L.Ed. may However is no unusual favor on the supra, that ^[938] 259-260, in recover- motions to its merits Export from the Actually Roche result 2041, U.S. at at that 148, referred to plaint procured time that the United States filed a com- porations Mines v. United withdrawing straining of discretion or Bankers Life as this Court shall have determined the power’ in the United 346 U.S. at aof issues erty ordinary Inasmuch * * * that and from of resorted ” of mandamus, case is clearly justifying where there this case and defendant cor- shall have As causes.’ reserved for preliminary injunction as the from the corporate & extraordinary remedies, disposing States De Beers and L.Ed. *5 “ Casualty States, proper. De inadequate ‘usurpation ” Beers complied “ country any prop- was a clear 74 S.Ct. at defendants from ‘until of really Co. issuance of a At any property Consolidated as the v. of remedy. such time others, the same reference Court appeal with its Holland, extra- abuse sort it orders’ ”. [325 U.S. 65 S.Ct. 1132.] emphatic say was most petitioned The defendants the United ing, page U.S. at S.Ct. at States Court for certiorari di- agep court, contending rected to the district that, as “We assume seques- that the order inwas substance a contends, of trans- tioner the order property beyond power tration of trying objective defeats fer the court and an abuse discretion in single issues in a action and related supreme circumstances. give myriad to a will rise pointed out that the district court had practical problems as well .and applicable no stat- courts; but to both Con- convenience gress money judgment, utes to enter a that its contemplated must have those only power was to restrain the future providing that conditions continuance of or actions conduct intend- judgments reviewable.” final monopolize commerce, ed restrain or And, page 346 U.S. at injunction and that the page the court concluded: of this page not character. U.S. at “ 65 S.Ct. at the court prohibition ‘Mandamus, and in- said: against judges junction are drastic extraordinary injunction remedies. We do “It is not an in power cause, doubt it deals with a matter lying wholly such writs. But have outside the issues ,the consequence of property unfortunate mak- the suit. It deals with argued, saying, which in no circumstances can be issue or injunction dealt with in F.2d at “ * * * that be entered. It is not a because intervenor property form used seizure its brief raises no in this offending against statute, respect and in oral con- property is not such as ceded both the of the court seized under be 6 of the Sherman § appropriateness and the of the reme- 6], Act under U.S.C.A. [15 § dy.” 76 of the Wilson Act [15 on the decision 11], complaint affi- Supply of this court in Industries charge. purport davits do not so to process only be, is, This and can appeared Maryland Baking providing sustained as a method of Company Company and Northwest Cone security compliance with other commenced an action in the United States process conceivably may District Court for the Northern District money issued for satisfaction of a against Dairy Sup- Illinois Industries contempt.” ply Association, corporation a New York having concluded, principal place The court Washington, injunction C., D. and its officers and directors, charging was not authorized either statute or a violation them Chicago by usages equity and reversed the the Sherman Anti-Trust granting injunction. enjoin Act. The action decree More- was to defend- *6 dissenting over, preventing justices plaintiffs ants from par- in four of the ticipating exposition went even in an and said that cer- about to be granted Chicago by held in defendants, tiorari should not have been the damages all. asked for treble juries sustained. After summons had Fire on C-O-Two moved, been served first, the defendants Barnes, Cir., 194 Co. v. to transfer the action to the district affirmed Cardox v. C-O- pur- court for the District of Columbia Equip. Co., Two Fire 1404(a).1 suant to 28 U.S.C. At the 668, in which this 97 L.Ed. moved, same time the association second- in court mandamus a writ of ly, quash upon service of summons it a ease of venue was in and service of an alias sum- raised in a motion the district mons served in thereafter Wash- action, for dismissal of the the defendant ington, C.,D. and to dismiss the action suggesting to the trial court that instead for want of venue the Northern Dis- dismissing ap- the action it would be trict of Illinois.2

propriate dis- to transfer it under the The district court overruled the second cretionary provision U.S.C. § motion, approved. which action this court (a). The denied the mo- district court found, tion to dismiss or to transfer. In this The district court as to the Appeals per- motion, Court of the defendant first that defendants had failed proving mitted to intervene. This court issued to sustain their burden of what requested required prove mandamus a writ of in order to However, appropriateness transferring tioner. the ac- remedy of mandamus was tion to the District of Columbia. It parties “(a) “(a) For 1. the convenience of The district court of a district witnesses, justice, laying interest which is filed a case venue in the any wrong district court transfer civil ac- dismiss, division or shall district any tion to other district or division justice, if it be in the interest of transfer brought.” any where it have been such case district or division in relying Obviously 1406(a), brought.” on 28 U.S.O. which it could have been reads: which motion, plicable either dis- must and the court first therefore overruled to a district miss the or transfer be- cause “reversed” this court which action is manda- denying section where venue tory. lies. respondent cause the Thus, the nar- 1404(a) with are faced we under § transfer motion to the applied ap- is mandamus row of whether set not those tests propriate court’s deter- actually trial section forth is action mination such an to be consid- only factors names three par- before it. of the ered, namely, the convenience witnesses, ties, the convenience v. Hol- & Co. In Bankers Life Cas. Thereupon justice. the interest land, the cause this court “remanded” of venue the issue Court treated court to instructions to from a decision as as a of law and redetermine motion consider the first aggrieved party obtain to which an thereon, on the basis of its action adequate by appeal ad- relief statutory factors. urged judication It merits. remedy by way of before us appeal bar there was In the inadequate, as the inasmuch want venue dismiss for motion to question depends, in first in- venue 1406(a). under § stance, on factual determinations petitioners find no reasons For these before us fortified trial by which come holding support Indus- validity, presumption pro- Supply tries delayed priety not be of which should F.2d 554. finally disposed of. until the case ceding Con- forth, For reasons hereinbefore set speculative character of the petitions for writs of mandamus adequacy remedy, we are this aware be, are, denied. should permit us, authority of no which would writs denied. Petitions for guise remedy, as- super court, sume the of a trial stature Judge LINDLEY, (concur- Circuit merits, prior to decision sec- *7 ring) . guess court on the ond exer- agree my I brethren giving powers, cise of no of mandamus for a writ must be weight findings of fact on which its view, however, denied. In of the doubt depends. decision If such of re- uncertainty frequently arises provided by view is to exist it must be as to the use of mandamus aid of our Congress. However, pursuit appellate jurisdiction and which inher- of this would serve no useful ently requires clarity as to what is de- purpose. Bankers Life decision is case, cided in each I feel constrained to controlling us; on the say something as to the limitations remedy inappro- of mandamus I feel to our decision. attach priate. We can this result with issue which is reconcile our determinative of appro- this decisions Fire cause is the narrow one C-O-Two priateness Barnes, Cir., remedy, power Co. v. e., of the our i. specific affirmed Cardox v. C-O-Two mandamus the Fire Co., Equip. Clay- order entered. Section Act, Sup- ton 97 L.Ed. Industries 15 U.S.C. limits venue litigation against ply corpora- antitrust 554, insofar tion to district whereof it as those cases is an in- considered “any petition, habitant may merits of or to district a like wherein it sin- gle ground ap- be found or transacts business”. propriateness remedy exists, If none of these conditions man- brought damus court wherein such an action is was not raised in either of those venue; 1406(a) ap- lacks 28 U.S.C. cases.