Magnetic Engineering & Manufacturing Co. v. Dings Mfg. Co.
178 F.2d 866
2d Cir.
1950
Check Treatment

*1 fore- proceedings with in accordance MANUFAC MAGNETIC &

going. ENGINEERING CO. MFG. CO. v. DINGS TURING 86, SWAN, (dissenting Docket No. part). Appeals Court United States much agree with so I am unable Circuit. Second imposition gift opinion as affirms Argued 8, 1949. Dec. ex deposits. Provisions the bank

taxes on 4, insurance and empting from estate taxes Decided Jan. engaged deposits non-resident bank ap first States in business in the United Act 403(b) (3) the Revenue

peared in § 227, gift 1921, No tax Stat. ex of such purpose

then in force. insurance emption American enable compete with for

companies and banks to Rep. Senate eign and banks. underwriters In Reve Cong.

No. 1st. sess. 67th ex Stat. nue Act section emption forward as was carried U.S.C.A.Int.Rev.Acts, page

303(e), 26 taxes chapter dealing estate with chapter imposing appear in the

but did not exemption were con gift Unless tax. applicable gift tax also to the to be strued exemption tax purpose of the estate frustrated, part at least.

would be 44 Stat. 26 U.S.C. Revenue Act A.Int.Rev.Acts, seq., repealed et estate gift tax and continued the exemption by 303(e). Conse section

tax in to 1932 American

quently under companies banks were

surance foreign disadvantage competing

no non-resident business of

concerns for the life

depositors applicants for insurance. gift tax stat- statute and

The estate and must con- pari materia

ute are intend- together. Congress If had strued deprive American Act the 1932 ed they advantages banks of insurers and likely years for six it seems enjoyed history would have dis- legislative think not. purpose. closed yield 1000(b) should words of

the literal § exemption. Merrill purpose of

to the 308, 65 89 L. Fahs, 324 inferentially support tends Ed. 963 majority opin- inasmuch as the

conclusion view rejects Mr. Reed’s ion Justice gift from the of words tax

omission tax indicated in the estate included

were rights intent to accord

Congressional treatment. different

involved *2 Asbury S. Edmonds and Robert E.

Burns, City, New York appellant. for the Page Ward, Crosby S. Haselton and & Neal, City, New appellee. York for the HAND,

Before L. Judge, Chief and FRANK, Judges. SWAN HAND, L. Judge. Chief appealed has an order entered in the above action (1) denied a motion for preliminary in junction, forbidding the defendant threaten its customers infringement patents; of four named directing the plaintiff to complaint by amend its stating separately two pleaded claims which it one, and to state definitely more certain allegations claim; each (3) trans ferring the action to the Eastern District of Wisconsin as the more convenient foru m.1 nature of the action facts, alleged in pleadings and in the affidavits, are stated Judge Hulbert’s opinion reported D.C., 86 F.Supp. 13, with which we shall assume familiarity in say; what have to but at the outset a question arises whether we have longer appellate jurisdiction whatever over the order. certainly Hulbert intended to decide the pre motion for a injunction liminary compel the filing newa while the action re him, mained before to transfer it he had after done Indeed, so.

have been absurd decide anything in an action which had been transferred (a), 1. § 1404 Title 28 U.S.C.A. elsewhere; District clerk of the this affidavit and the served t New April Southern District on the for the defendant on Cour direction, did

York, hearing following judge’s motion did not come *3 in on file papers May April made a not once transmit the 24. On 18the defendant of Wis parts, supplement District motion the Eastern' in four which it office to consin; indeed, plaintiff May 13, on on again May or after the ed on and affect appealed. day not had order did also filed its answer. No it cause; the automatically any the where- in filed did its to of the affidavits sym president, else, quali be the papers anyone deny of was to or transmittal the was transfer; case fy quoted; bolic of the for act and statements we have and court, appeal injunction in when purpose still temporary it, taken, they appeal removed was taken. Since the must take So them as true. nothing place provisional later in the district justify a conclusion that taking faith, once ac good court could affect in defendant did not act However, order, quired. requiring several of it times asserted to customers plaintiff separate plaintiff and to make the claims val patents to the two -any definite, id, complaint more and sue for intimated that it would appeal- interlocutory, enjoined plainly infringement. and not their be event must any theory. therefore so, We shall va continuing able to until their do on pro two to the other lidity confine our discussion at the trial. Noth can determined ing pat visions of the order. of two affects the other kind 2,446,812. 2,410,601 ents in suit—Nos. and temporary as denied the In so far it pre appears, enjoy So far as these injunction, appealable, it was course of sumptive validity pat any duly issued of sup In and it is before us on the merits. ents, rights and the defendant is within its port to the four of its motion as two of asserting anyone it against whom them 2,003,430 patents controversy and —Nos. infringing good believes to be faith 2,090,112 plaintiff an submitted affi —the any them. The must submit one, Hope, chief had been of that he davit sustain, anyone loss it as must who 1932,“during engineer of the defendant patent yet good upon sued in faith not prosecution application” of the adjudicated; relief is an action first these and that the defend patents; declaratory for judgment, as this. attorney, it, “soliciting” ant’s who was told enjoin denying the motion to possible thought might him he “to threatening plain the defendant from patent, get sort some but that upon tiff’s customers suits Patents any good.” affidavit went not 2,003,430 2,090,112 Nos. re will be attorney he say that the had also said that injunction go versed and prayed; an president drop told the “to had defendant’s otherwise will be affirmed. application,” president do, ordinarily answered that he would so question remains the patent sort of but that if at all could the transfer. Before the enactment of § thought obtained valu-i 1404(a) of the Code all courts Judicial trading.view to them from a “business able indo cases of forum non conveniens point.” patent, plain As to the second was to dismiss the leave produced tiff letter the defendant’s to a proper new action in the president attorney to the same —while district; those were ap final orders and patent application for that was in the Pat ’ pealable. However, when an action part ent of which declared: Office— transferred, was; it remains what it all “Frankly, going through we are with proceedings merely further in it are re political purposes. The refinements tribunal, leaving ferred another un merit, course, brought out have some whatever has touched been way thinking they done. hardly war expense of taking patent out on For this reason the Fourth Circuit Jiffy rant the n . . Company, them.” Lubricator Inc. v. Stewart- appeal a Corporation,2 an federal state and a transfer Warner dismissed to a court agree; court, the to an from such order. We another federal writ However, part go will be the order in the case at bar. there is from that difference, decisive a state '(cid:127).dismissed. a remand puts jurisdic- an end to federal twice In this circuit we have whatever, merely tion does not substi- accept as a substi refused tute one federal for another. We mandamus, even tute for do protect our believe that our ;3 remedy applicable when that *4 jurisdiction own protecting extends to it as by ruling. shall abide would re That against jurisdiction of another federal quire mandamus, plaintiff proceed by equal jurisdiction, of that a Preston, as was done later in Mottolese any protected suitor has interest legally Cir., However, 2 176 F.2d 301. that course in having particular any action tried in here, for, dis not be effective if we would court, except federal so far as the trans- appeal miss the and remand case to the the. presentation fer may handicap his of the court, grant it will be too late to a case, or add to the costs of trial. mandamus, for the cause has been being only Nevertheless, These interests transferred. if we should recognize, transfer which we have had decision issue the upon may must turn plaintiff plaintiff applied for whether the it at when the time prejudice suffer so appealed, respect much ought it of we think ei- that we ther grant now, justify as to by of ignoring it intervention means what is at best form; very exceptional this a writ.8 will matter That cer- and for that reason tainly in large depend upon hold that we measure appeal are free treat any remedy whether other for is question available to mandamus. it; certainly and it upon ap- is then becomes whether true that an the circumstances peal from judgment against bar final pro it, at call for its it issue. If we could will extremely difficult for the appellate jurisdiction only tect our in that way, show that it doubt; lost the case there be no because of the would indeed handicap practice before of the transfer. control, 1875 As would then the add- which, trying forum, ed cost of under if a the case in erroneously circuit the new it is hard to see how in any remanded a court, removed case to event a state Supreme defendant, recoverable from the Court would re review mand error would be that of right mandamus.4 In 1875 the court. appeal are therefore at or writ of least giv plausible error was expressly 5 grounds why en in such cases we should so that be issue the writ. mandamus On hand, unnecessary; and, came the other whatever review the Act ¿mended 1887, have, may 1875 Appeals abolished the Court of appeal error,6 and writ of same; Court the Seventh Circuit has the practice revive, held that the old not did will be in position that court a much better the intent apparent because pass upon to abolish than we to at least the first any involved; kind of especially questions e., because of the two i. the ex- review — words, “such remand shall be immediate tent review transfer 7 ly precedent carried into open upon appeal execution.” from a judg- final good; and, against plaintiff. nevertheless is still if ment there is true that were no difference between remand from the same considerations would determine 470, F.2d 177 360. 5. L. 2. 18 St. at 472. 552, 24 L. 553. 6. St. at York,

3. Abbe v. New New Haven & Hart Ry. Co., Cir., ford 171 F.2d Mot Pennsylvania parte Company, 7. Ex Preston, Cir., 301, tolese v. 172 F.2d U.S. 34 L.Ed. 308. Chicago parte Company Fahey, & A. 8. Ex Railroad 67 S.Ct. L.Ed; Wiswall, 23 Wall. 23 L.Ed. 103. Judge (dissenting FRANK, Seventh Circuit we, answer, or the whether part). it; not follow Circuit, but it decide in each the same that the decision would incline believe re- court; and, the absence since correct probably and the Fourth so judgment is upon final appeal from lief now cannot in holding that decision, appro- surely it critical order seek relief from the transfer it, which priate to decide for that court stage since not We will itself. will decide the appeals appeals governing bars plain be so might not say that the answer orders, removal interlocutory and since hesitate, or that that we However, interlocutory. probably order go, mandamus to impossible for recently substituted Congress, when it re- though would be even the transfer of dismissal for an order enough appeal. final It is viewed on previously non con- (under used the forum question, and prove the crucial this, almost veniens like doctrine) cases Cir- the Seventh decision of it surely result, e., i. plan did not *5 ours. obviously preferred be to cuit to is mind think have in Congress that did not plaintiff may apply to that court Since the be interlocu- order would hardship, we cost or substantial without tory think, non-appealable. I there- grant. decline to fore, prompt justice a should that sense relief, grant possible, by way us suggested the Sev- to if Finally, it be if here, if, jurisdiction the facts the have no mandamus.1 For on enth Circuit would jurisdic- improper, Judge resume transfer order Hulbert to to direct hurt, obliged tion, neces- be be to seriously will not be should he we answer that that wait, court reversal of that or- sary. The is in the Wisconsin vacation cause a or transferred, for, how- der, completion of a in Wis- the trial which it has been to transfer, Judge Indeed, paradoxically, Hulbert he must consin. if ever erroneous wait, or- of the jurisdiction to make the and then wins at the end thus had undoubted trial, him, The executed. review the hurt caused the trans- and it has been to der fer, wholly in trans- court a will irremediable. order of be .of transfer, cause, is before made ferred colleagues, to My conceding hardship ap- the court of jurisdiction within closed, plaintiff if the mandamus road is cause has peals circuit to say open plaintiff, will to that that road transferred; Cir- and if the Seventh been case, after the transfer of the the transfer errone- cuit decides which, my say, colleagues Seventh Circuit ous, to direct Wis- jurisdiction has have to direct re-transfer will back to action to transfer the court consin trial, to the court be- of this before York, just New District of the Southern involves, procedure nec- low. But such a of that district. transferred out as was essarily, expense plain- considerable order, denied the motion so as it far The printed He tiff. has modi- temporary injunction, will for a transcript of the record this court con- indicated as above. fied printed pages, sisting brief of 134 colleagues’ pages length. Under the order so much of decision, reprint, must now at least file an amended as directed transcript brief, part, and must as much as transferred and from trip lawyer expense pay his also action, will dismissed. employed by urged decry we Judge a kind which and I have Learned Hand Georgia appropriate ease, see that, the district courts. But in an Compania, Hardwood Lumber Co. De for a as a be treated should Navegacion Transmar, A., S. 323 U.S. our have But mandamus. 334, 335, L.Ed. disagreed concur therefore with us. I opinion dissenting except that, S. ex in U. rel. Sutton Hand’s conclusion Mulcahy, here, Cir., 169 F.2d as that situations in unusual precedents constrain us our recent pleadings, formalism, as adhere to facts, that, glaring fee but Chicago another absent such (presumably) Seventh preferred Cir- much argument oral the Seventh is- we a writ should expense,' cuit. and bother Circuit consider whether delay interpreta- to sue. if restricted promptly could now Even this save him were correct, I opinion my colleagues’ tion of decide of manda- whether to writ issue a why perceive reason disagree. mus. For I no better Seventh Circuit can decide My colleagues (1) answer thus: seem to all, issue the removal than we. After can empowers statute to issue such us within order was made a district court “jurisdiction.” writ only appellate of” “in aid our And, this if the Seventh Circuit. “jurisdiction” in 2 The word will become issue the situation jurisdiction .(a) context means not direct involved: That Circuit Court will solely of this (b) federal circuit re-trans- district court Wisconsin to in distinguished federal court fer the below. But the case the court jurisdiction. from state court is with subject re-trans- below not be ato point (2) reasoning disagree. of this that I Circuit, fer order entered the Seventh grant justice court’s sense of might, refusing comply should ignore not induce it to limitations order, again transfer case Wiscon- power imposed by its by prece Perhaps, circumstances, sin. those dents so well established that intervene, and, probably, feeling improper judicially.5 to alter them But obliged to follow Seventh de- Circuit’s nothing see no such I find barriers here. *6 termination, would, mandamus, di- then legislative history wording rect the court below to hear the Such case. mandamus, toas writs nor complicated procedure my col- which statute, construing decisions that leagues’ opens up possibility. decision as a compels which conclusion undesirable I why require fail to understand should at which my apparently have ar procedure such an involved instead of our- rived. determining selves at once whether the or- my is one colleagues’ sentence in der of the lower court was its dis- within opinion perhaps that, now, We intimates were cretion. can do so all the impropriety of the bearing transfer order facts propriety suf- ficiently glaring, issue in the record could now before us. formerly 1651(a), rule, always 2. § 28 U.S.C.A. a technical I 28 U.S. almost principles my found § C.A. 377. suited view of the * *” * case. ,3. Injustice Calm, (1949) Cf. The Sense of L. R. See N. B. National Maritime 37-38. Union, Cir., 2 F.2d 175 690 lawyers Some seem to consider it scan note 7. dalous a court ever should state prompted justice Holmes, J., a sense See in Southern Pacific result, Jensen, 205, 218, 221, to reach a Co. 244 even within the allow Eckler, 37 able limits. Cf. 17 Un. of Chica 61 L.Ed. L.R.A. go (1949) 62; Sheppard, 1918C, 451, L.Rev. Ann.Cas.1917E 900: “A System judge Precedents, say, Decadence of the common-law ‘I think 24 Harv.L.Rev. But the doctrine of consideration bit J., Holmes, contrary took I think that historical nonsense shall not enforce ” position many comments on the court.’ See also Slifka v. public policy Johnson, Cir., considerations 161 F.2d 469 at sway 470; Palmer, Cir., courts. Note also con Hoffman v. said, 987; dissenting opinion servative Chancellor Kent in a 129 F.2d that, deciding letter, he Commissioner Internal Revenue v. Estate, Cir., first made himself “master of the facts.” Hall’s 153 F.2d Then, continued, jus page- opinion concurring “I saw where in Aero lay, Spark Plug Corp., Cir., and the moral tice sense decided Co. G. v. B. time; pages 297-298; Frank, half the the court then sat 290 at down F.2d * * * (1949) Chapter search authorities Courts On Trial might 285-286). (especially pp, 270, once while be embarrassed