Anderson v. McLaughlin

• Decision Date: 18 February 1959
• Citation: 263 F.2d 723
• Parties: J. Leland ANDERSON, Petitioner, v. J. Frank McLAUGHLIN, United States District Judge for the District of Hawaii, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

263 F.2d 723 (1959)

J. Leland ANDERSON, Petitioner, v. J. Frank McLAUGHLIN, United States District Judge for the District of Hawaii, Respondent.

Undocketed.

United States Court of Appeals Ninth Circuit.

February 18, 1959.

Ivan E. Lawrence, Northridge, Cal., for appellant.

Smith, Wild, Beebe & Cades, William B. Borthwick, Honolulu, Hawaii, for appellee.

Before DENMAN, BONE and ORR, Senior Circuit Judges.

DENMAN, Senior Circuit Judge.

Anderson seeks a writ of mandamus requiring the District Court for the District of Hawaii to postpone trial of Rolph v. Anderson and Girton v. Anderson, now pending in that court, until our final disposition of his appeal in Knox v. Anderson. Anderson urges that the District Court's refusal to delay trial of these cases constitutes a gross abuse of discretion. He contends that the District Court found him liable in Knox v. Anderson under a theory of tortious misrepresentation which was without precedent in the common law, that the suits by Rolph and Girton are based upon the same novel theory of liability and that should we reverse the District Court in the Anderson case, dismissal of the Rolph and Girton suits would likewise be compelled. He urges that it would be a serious hardship upon him to defend the latter suits at the present time and that his efforts would be wasted in the event that our favorable decision in his Knox appeal should result in dismissal of those suits.

Anderson alleges that prior to filing this petition he moved in the lower court for postponement of the two pending cases until the Knox appeal should have been decided. Subsequent to the filing of this petition, Judge McLaughlin removed the two cases from calendar, "subject to a motion to re-set by either party, subsequent to Court of Appeals disposition of presently pending preliminary motion to dismiss appeal and grant further time to file record in Knox v. Anderson". Since this somewhat ambiguous removal is not clearly the postponement Anderson was seeking and the failure to grant which he herein urges was a gross abuse of discretion, we cannot regard Judge McLaughlin's action as rendering Anderson's petition moot.

Our authority to issue mandamus is conferred by 28 U.S.C. § 1651:

"(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."

This authority "is not confined to the issuance of writs in aid of a jurisdiction already acquired by appeal but extends to those cases which are within our appellate jurisdiction although no appeal has yet been perfected." Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 25, 63 S.Ct. 938, 941, 87 L.Ed. 1185.

However, the extraordinary writs should be issued only under unique and compelling circumstances.

"The traditional use of such writs both at common law and in the federal courts has been, in appropriate cases, to confine inferior courts to the exercise of their prescribed jurisdiction or to compel them to exercise their authority when it is their duty to do so. In re Chetwood, 165 U.S. 443, 462, 17 S.Ct. 385, 392, 41 L.Ed. 782 (citing

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