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Arrowhead Co., Inc. v. The Aimee Lykes

ARROWHEAD CO., Inc., Et Al. v. THE AIMEE LYKES Et Al.

Arrowhead Co. v. The Aimee Lykes, 193 F.2d 83 (2d Cir. 1951)
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Court
Court of Appeals for the Second Circuit · U.S. Courts of Appeals
Decided
November 28, 1951
Docket
No. 22149_1
Judges
Swan, Frank, Coxe
Citations
193 F.2d 831951 U.S. App. LEXIS 2868

Opinion — Frank

FRANK, Circuit Judge.

1. The order is not final within the meaning of 28 U.S.C. § 1291 .

1

Nor is it the kind of interlocutory order made appealable by 28 U.S.C. § 1292 , for it does not determine the rights and liabilities of the parties.

2

3

2. But, in appropriate circumstances, we may treat an appeal as a petition for a mandamus writ.

3

Yet if no more than an “abuse” of discretion is involved, and the order directs a transfer, 4

we have held that we will not entertain such a petition, for it must be addressed to the court of appeals for the circuit which includes the transferee district.

5

*85 If, however, the district court lacked all power to order a transfer, so that its order is a nullity, we will issue a writ of mandamus.

6

But we think that here ■ there was no such lack of power. 28 U.S. C. § 1404(a) relates to “any civil action”; see Ex parte Collett, 337 U.S. 55, 58 , 69 S.Ct. 944, 959 , 93 L.Ed. 1207 ; United States v. National City Lines, 337 U.S. 78, 81, 83 , 69 S.Ct. 955 , 93 L.Ed. 1226 ; cf. 28 U.S.C. § 1333 .

7

Appeal dismissed. Treating it as a petition for a writ of mandamus, the petition is dismissed.

1

. Magnetic Engineering & Manufacturing Co. v. Dings Manufacturing Co., 2 Cir., 178 F.2d 866 .

2

. See, e. g., Schoenamsgruber v. Hamburg-American Line, 294 U.S. 454 , 55 S.Ct. 475 , 79 L.Ed. 989 ; Jarka Corporation v. Rederii, 1 Cir., 110 F.2d 234 ; Barbarino v. Stanhope S. S. Co., 2 Cir., 150 F.2d 54 .

3

. Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., 2 Cir., 178 F.2d 866 .

4

. If a district judge refuses to order a transfer, and, in doing so, “abuses” his discretion, we will issue a writ. Ford Motor Co. v. Ryan, 2 Cir., 182 F.2d 329 .

5

. Magnetic Engineering & Mfg. Co. v, Dings Mfg. Co., supra. In that case, *85 the writer of the present opinion dissented; he still believes that decision wrong — see Atlantic Coast Line R. Co. v. Davis, 5 Cir., 185 F.2d 766 — but will abide by it until his colleagues are ready (as now they are not) to overrule it.

6

. Foster-Milburn Co. v. Knight, 2 Cir., 181 F.2d 949 .

7

. It is perhaps arguable that § 1404(a) does not apply to an in rem proceeding because it could not have been brought in the transferee district. But we need not and do not pass on that question.

How later courts describe this case

Explanatory parentheticals written by citing courts — 2 in all; the most informative distinct ones are shown.

Cited by 22 cases

View all citing references →
1952: 11953: 11954: 21955: 41956: 11958: 11959: 41961: 21962: 21970: 11976: 21979: 119522026peak 1955 · 4

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 9

DepthCaseCited by
Ex Parte Collett, 337 U.S. 55 (1949) 416
Schoenamsgruber v. Hamburg Am. Line, 294 U.S. 454 (1935) 129
United States v. Nat'l City Lines, Inc., 337 U.S. 78 (1949) 117
Magnetic Eng'g & Mfg. Co. v. Dings Mfg. Co., 178 F.2d 866 (2d Cir. 1950) 107
Ford Motor Co. v. Ryan, 182 F.2d 329 (2d Cir. 1950) 243
Foster-Milburn Co. v. Knight, 181 F.2d 949 (2d Cir. 1950) 93
Atl. Coast Line R. Co. v. Davis. In Re Atl. Coast Line R. Co, 185 F.2d 766 (5th Cir. 1950) 31
Barbarino v. Stanhope S. S. Co., 150 F.2d 54 (2d Cir. 1945) 13
Jarka Corp. v. Rederii, 110 F.2d 234 (1st Cir. 1940) 7

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