Comfort Equipment Co. v. Steckler

Citation212 F.2d 371
Decision Date20 April 1954
Docket Number11073.,No. 11072,11072
PartiesCOMFORT EQUIPMENT CO. v. STECKLER. BURCH MFG. CO., Inc. v. STECKLER.
CourtU.S. Court of Appeals — Seventh Circuit

John G. Madden, Kansas City, Mo., Thomas I. Underwood, Chicago, Ill., Rudolph L. Lowell, Des Moines, Iowa, Charles F. Meroni, Chicago, Ill., Charles T. Rafter, Jr., Kansas City, Mo., Madden & Burke, Kansas City, Mo., Winston, Strawn, Black & Towner, Chicago, Ill., of counsel, for petitioners.

J. Preston Swecker, Washington, D. C., for respondent.

Before MAJOR, Chief Judge, and LINDLEY and SCHNACKENBERG, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

Pursuant to leave granted, Comfort Equipment Company, a Missouri corporation, having its principal place of business in Kansas City, Missouri, hereinafter referred to as "Comfort", and Burch Manufacturing Company, Inc., an Iowa corporation, having its principal place of business in Fort Dodge, Iowa (formerly Fort Dodge Tent & Awning Co.), hereinafter referred to as "Fort Dodge", each filed in this court a petition for mandamus naming Judge William E. Steckler of the United States District Court for the Southern District of Indiana, Indianapolis Division, as respondent.

Respondent filed motions to dismiss both petitions, to which motions petitioners filed answers.

Rulings upon the motions to dismiss were withheld pending the hearing of these cases on the merits.

Respondent filed answers to the petitions. Oral arguments were heard before this court.

These two proceedings have the single purpose of obtaining a review of an order entered in the district court overruling motions by Comfort and Fort Dodge to dismiss an amended counterclaim and cross-complaint filed by The Original Tractor Cab Company, Inc., seeking relief, under the anti-trust laws of the United States of America and the declaratory judgments act, from Comfort, Fort Dodge and Cab-Ette Company, named as defendants in the amended counterclaim and cross-complaint. The amended counterclaim and cross-complaint were filed in a case instituted in said district court by Clyde E. Clapper and Lee Flora, plaintiffs, against The Original Tractor Cab Company, Inc. and Stanley Williams, defendants. Comfort and Fort Dodge were thus introduced into the case by being made defendants to the amended counterclaim and cross-complaint. Comfort and Fort Dodge were each served with a summons and a copy of the amended counterclaim and cross-complaint in the district where each is domiciled and has its principal place of business. Thereupon, Comfort and Fort Dodge filed said motions to dismiss the amended counterclaim and cross-complaint, alleging the following grounds: proper venue does not exist because said cross-defendants are not residents of the Southern District of Indiana, are not to be found therein, are not inhabitants thereof, do not have any agent therein within the meaning of section 4 of the Clayton act, 15 U.S.C.A. § 15, and do not transact business therein.

Respondent tried the issue of venue in open court upon oral evidence and depositions, as well as the affidavits presented with the motions to dismiss, heard oral argument and considered written briefs filed by counsel, made findings of fact and conclusions of law and entered the order now in question, which overruled the motions to dismiss for improper venue. Included in the evidence considered by respondent was the testimony of fifteen witnesses. Upon oral argument before this court there was produced a box, said by counsel (and not disputed) to contain what respondent had before him at said trial. The box and its contents were left in the custody of this court for its inspection, which reveals the contents to be as follows: 129 separate pieces of documentary evidence and a transcript of oral testimony, consisting of about 750 pages, depositions consisting of about 750 pages, also 45 written interrogatories and 79 answers thereto, both totaling 80 pages, as well as the pleadings filed in the district court during a period of five years.

With the aforesaid order, respondent filed 13 pages consisting of 14 findings of fact and 7 conclusions of law. The fourth conclusion of law is that Comfort and Fort Dodge transact business in the Southern District of Indiana within the meaning and requirements of section 12 of the Clayton act, 15 U.S.C.A. § 22, that they were so engaged at and prior to the filing of the amended counterclaim and cross-complaint herein, and that they were each properly served in the districts where they were found, to-wit, the Western District of Missouri and the Northern District of Iowa, in which each is respectively domiciled.

The order under attack in these proceedings is not a final order. Section 1292(1), title 28 of the United States Code authorizes appeals from certain interlocutory orders. The order now under consideration is not an interlocutory order from which an appeal is authorized by said section. Here the extraordinary relief afforded by writ of mandamus is sought as means of obtaining an immediate review of an interlocutory order which admittedly is subject to review by appeal after the district court shall have finished with the principal lawsuit.

Petitioners argue that mandamus is proper in this situation for the reason, among others, that the order in question involved a jurisdictional ruling. The same contention was made, without success in American Airlines v. Forman, 3 Cir., 204 F.2d 230, at page 232, where the court said:

"But that difference alone is not enough to make a peremptory writ appropriate. See Ex parte Chicago, R. I. & P. R. Co., 1921, 255 U.S. 273, 275-276, 41 S.Ct. 288, 65 L.Ed. 631. The challenged assumption or denial of jurisdiction must be so plainly wrong as to indicate failure to comprehend or refusal to be guided by unambiguous provisions of a statute or settled common law doctrine. If a rational and substantial legal argument can be made in support of the questioned jurisdictional ruling, the case is not appropriate for mandamus or prohibition even though on normal appeal a reviewing court might find reversible error. We so held most recently in Pennsylvania Turnpike Commission v. Welsh, 3 Cir., 1951, 188 F.2d 447. Accord: Petition of Therianos, 3 Cir., 1948, 171 F.2d 886; Hazeltine Corp. v. Kirkpatrick, 3 Cir., 1948, 165 F.2d 683."

The facts in the instant cases indicate that there was no hasty, peremptory or arbitrary action by respondent, but, on the contrary, it amply appears that he conducted a lengthy trial in open court where he received evidence upon the issue of venue, considered counsel's arguments and briefs and considered and analyzed the evidence and the applicable law before arriving at a decision. The record before us indicates that respondent conscientiously exercised his judgment in deciding the issue as to venue. Whether he erred is not a question which can be raised and decided in these mandamus proceedings. As the court said in considering a not dissimilar situation in American Airlines v. Forman, 3 Cir., 204 F.2d 230, at page 233:

"The language, structure and legislative history of statutes must be examined. Relevant judge made doctrine must be considered. The interplay of these factors must be rationalized. The facts before the court must be analyzed in relation to the legal rationalization. If, after exercising professional skill and judgment in working through a process of this sort a court decides, rightly or wrongly, that it has jurisdiction, it is most unlikely that the judge will have merited that peremptory admonition which is reserved principally for cases of abuse or gross misuse of power."

We are in accord with what the same court then said, 204 F.2d at page 233:

"Finally, we emphasize that there is much more than technicality in the very great reluctance of appellate courts to employ mandamus or prohibition to review decisions which can later be reviewed in normal course of appeal. Procedurally, these extraordinary remedies are actions against the judge himself, requiring him personally to justify and defend what he has done as a judge. The fact that counsel for the party who has prevailed in his court often appears in the judge\'s behalf does not change the fact that in a very real sense the judicial officer himself is being put on trial. Beyond this, in order to state a cause of action it normally is necessary to charge the judge with arbitrary action, usurpation of power or obvious disregard of the law, however counsel drafting and arguing a petition for a peremptory writ may sugarcoat the pill. There is occasional need for such procedure and justification for such allegations. But a judge should not be subjected to an attack of this kind merely as a device for earlier review of an interlocutory order than ordinarily is permitted. Ex parte Fahey, 1947, 332 U.S. 258, 67 S.Ct. 1558, 91 L. Ed. 2041."

Counsel for both petitioners and respondent rely on the recent case of Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 74 S.Ct. 145, decided November 30, 1953, where a treble damage action was brought under the Sherman and Clayton acts, 15 U.S.C.A. § 1 et seq., by petitioner (an insurance corporation) in the United States District Court for the Southern District of Florida, alleging a conspiracy to injure petitioner's business. The named defendants were the insurance commissioners of Georgia and Florida, one other individual, and four insurance companies residing and transacting business in the Southern District of Florida. The Georgia insurance commissioner (Cravey) was personally served in the Northern District of Florida. He moved to quash the summons and dismiss him for improper venue. The judge held that his court had jurisdiction of the action and of the commissioner, but that venue was not properly laid. He thereupon ordered the action as to Cravey severed and transferred to the Northern District of Georgia where Cravey resided. Petitioner then sought a writ of...

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    ...will ordinarily be denied." (quoting Ex parte Chicago, 255 U.S. at 275, 41 S.Ct. 288)) (citations omitted); Comfort Equip. Co. v. Steckler, 212 F.2d 371, 373 (7th Cir. 1954) ("If a rational and substantial legal argument can be made in support of the questioned jurisdictional ruling the cas......
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    ...Bankers Life & Cas. Co. v. Holland , 346 U.S. 379, 382–84, 74 S.Ct. 145, 98 L.Ed. 106 (1953) ; see Comfort Equip. Co. v. Steckler , 212 F.2d 371, 374–75 (7th Cir. 1954) (denying mandamus review of a denied improper-venue motion); Gulf Research & Dev. Co. v. Leahy , 193 F.2d 302, 304–06 (3d ......
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    ...decision was inappropriate and noting it was not clear that an adequate remedy could not be afforded); Comfort Equip. Co v. Steckler , 212 F.2d 371, 374–75 (7th Cir. 1954) (denying mandamus review of an improper-venue motion); Gulf Research , 193 F.2d at 304–05 (denying mandamus review of a......
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