Petsel v. Riley
| Citation | 192 F.2d 954 |
| Decision Date | 21 December 1951 |
| Docket Number | No. 14485.,14485. |
| Parties | PETSEL v. RILEY. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
D. C. Nolan, Iowa City, Iowa (William M. Tucker, Iowa City, Iowa, on the brief), for petitioner, Rose E. Petsel, executrix.
John Hale, Burlington, Iowa (J. C. Pryor, J. C. Riley, Clark, Pryor, Hale, Plock & Riley, Burlington, Iowa, and Lane & Waterman, Davenport, Iowa, on the brief), for respondent.
McDonald & McCracken, Davenport, Iowa, on the petition of defendant Robert N. Baker.
Before SANBORN, WOODROUGH and RIDDICK, Circuit Judges.
The petitioner, Rose E. Petsel, Executrix, asks this Court to issue a writ, under § 1651, Title 28, U.S.C.A., directing the Honorable William F. Riley, United States District Judge for the Southern District of Iowa, to grant her a jury trial of all of the issues of fact in a wrongful death case in which she is the plaintiff and the Chicago, Burlington & Quincy Railroad Company and Robert N. Baker are defendants. The case is pending in the United States District Court for the Southern District of Iowa, having been removed to that court from the state court of Iowa in which the case was commenced. The defendant Baker has also filed a petition for a writ requiring the respondent to grant a jury trial of the case.
At the foot of her complaint, filed in the state court, the plaintiff had requested a jury trial of her case. After the case was removed to the federal court, she filed no demand for a jury trial within ten days after service upon her of notice of the filing of the petition for removal. Neither of the defendants filed a demand for a jury trial. The defendant Baker asserts that he made no demand for such a trial because he relied upon the sufficiency of the plaintiff's request filed in the state court. The defendant Railroad Company moved to strike the case from the list of cases to be tried by jury. The plaintiff and the defendant Baker assert that the plaintiff's request for a jury trial in the state court entitled them to a jury trial in the federal court. Judge Riley ruled that, having failed seasonably to demand a trial by jury in the federal court in conformity with Rule 81(c) or Rule 38(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., the plaintiff was not entitled to a jury trial. The motion of the defendant Railroad Company was granted and the case was ordered stricken from the list of cases to be tried by jury.
The plaintiff and the defendant Baker contend that the ruling and order of Judge Riley is erroneous, that their right to a jury trial is clear, and that this Court should grant the writ prayed for. The plaintiff cites Canister Co. v. Leahy, 3 Cir., 191 F.2d 255, Abbe v. New York, New Haven & Hartford Railroad Co., 2 Cir., 171 F.2d 387, Ex parte Simons, 247 U.S. 231, 38 S.Ct. 497, 62 L.Ed. 1094, and United States Alkali Export Association, Inc., v. United States, 325 U.S. 196, 65 S.Ct. 1120, 89 L.Ed. 1554, in support of her contentions.
The order complained of, whether right or wrong, is not appealable nor subject to review or reversal in mandamus proceedings. Larsen v. Nordbye, 8 Cir., 181 F.2d 765, 766. The instant case, we think, differs in no controlling respects from the case of Hydraulic Press Manufacturing Co. v. Moore, 8 Cir., 185 F.2d 800. Section 1651, Title 28, U.S.C.A., "can, of course, not be availed of to correct a mere error in the exercise of conceded judicial power." De Beers Consolidated Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 1133, 89 L.Ed. 1566....
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