Evans Electrical Const. Co. v. McManus

• Citation: 338 F.2d 952
• Decision Date: 02 December 1964
• Docket Number: No. 17827.,17827.
• Parties: EVANS ELECTRICAL CONST. CO., a Corporation, Petitioner, v. Hon. Edward J. McMANUS, Judge of the District Court for the Northern District of Iowa, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

338 F.2d 952 (1964)

EVANS ELECTRICAL CONST. CO., a Corporation, Petitioner, v. Hon. Edward J. McMANUS, Judge of the District Court for the Northern District of Iowa, Respondent.

No. 17827.

United States Court of Appeals Eighth Circuit.

December 2, 1964.

Francis L. Kenney, Jr., of Kenney & Reinert, St. Louis, Mo., and Frank Jacobs, of Sifford, Wadden & Davis, Sioux City, Iowa, for petitioner.

Wiley E. Mayne, Jesse E. Marshall and Charles R. Wolle, of Shull, Marshall, Mayne, Marks & Vizintos, Sioux City, Iowa, for Westinghouse Elec. Corp.

Before JOHNSEN, Chief Judge, and MATTHES, Circuit Judge.

PER CURIAM.

Petitioner has filed an application for a writ in the nature of mandamus, under 28 U.S.C.A. § 1651, against respondent as district judge, and requests the issuance of a rule to show cause.

The writ is sought to effect the vacation of an order striking from petitioner's answer, as defendant in a suit in the district court, one of the affirmative defenses set up in it.

The suit involved was one under the Miller Act, 40 U.S.C.A. § 270a et seq., arising out of a construction project at the Air Force Base, Sioux City, Iowa, brought by Westinghouse Electric Corporation against the general contractor and the surety on its payment bond, to recover the purchase price of some electrical equipment furnished by Westinghouse to petitioner as a subcontractor.

Petitioner had asked and was granted leave to intervene in the suit as a defendant. In the answer which it filed, it set up the affirmative defense that Westinghouse had entered into a combination with five other electrical equipment manufacturers to fix prices on sales in the State of Iowa of the articles which petitioner obtained from Westinghouse, and that under the Iowa statutes there was in this situation no liability on petitioner's part to Westinghouse for the articles.

Under § 553.1, Ia. Code Ann., it is unlawful for a corporation transacting or conducting business in Iowa to enter into a price-fixing combination on articles or commodities sold in the State; and under § 553.5, the purchaser in such a situation "shall not be liable for the price or payment thereof, and may plead such provisions as a defense to any action for such price or payment".

The papers before us indicate merely that the defense was stricken by respondent, on motion of Westinghouse, as being "insufficient as a matter of law". If basis existed to contend "that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation", then petitioner should, within the intent and purpose of 28 U.S.C.A. § 1292(b), have made attempt to get respondent to so state in the order, to enable it to make application for permission to take an interlocutory appeal. No such attempt at proceeding by interlocutory appeal was made.

One who seeks to have such an interlocutory order overturned cannot choose in a situation of ordinary circumstances to proceed by way of mandamus instead of attempting to proceed by way of § 1292(b). Allstate Ins. Co. v. United States District Court, etc., 264 F.2d 38, 39-40 (C.A. 6, 1959); Regec v. Thornton, 275 F.2d 801 (C.A. 6, 1960). Nor is there a right in a situation of such circumstances to seek mandamus even where an attempt has been made and denied to proceed under § 1292(b). Interlocutory orders whose consequences are able to be...