Barber v. Hetfield
| Decision Date | 16 February 1925 |
| Docket Number | No. 4451.,4451. |
| Citation | 4 F.2d 245 |
| Parties | BARBER, U. S. Naval Disbursing Officer, v. HETFIELD. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Joseph C. Burke, U. S. Atty., of Los Angeles, Cal., and O. R. McGuire, Sp. Asst. Atty. Gen., for appellant.
James H. Farraher and Moore & Farraher, all of Los Angeles, Cal., for appellee.
Before ROSS, HUNT, and RUDKIN, Circuit Judges.
This is an appeal from an order awarding a peremptory writ in an original action in mandamus commenced in the court below. At the threshold of the proceedings the jurisdiction of the court was challenged by motion to dismiss, and, in our opinion, the challenge should have been sustained. Discussing the jurisdiction of the courts of the United States in original mandamus proceedings, in Covington & C. Bridge Co. v. Hager, 203 U. S. 109, 27 S. Ct. 24, 51 L. Ed. 111, the Supreme Court said:
Again:
"We deem it settled beyond controversy, until Congress shall otherwise provide, that Circuit Courts of the United States have no power to issue a writ of mandamus in an original action brought for the purpose of securing relief by the writ, and this result is not changed because the relief sought concerns an alleged right secured by the Constitution of the United States."
Our attention has not been directed to any act of Congress enlarging the jurisdiction of the District Courts of the United States in this regard, and we have found none. Paragraph 14 of section 24 of the Judicial Code (Comp. St. § 991), defining the jurisdiction of the District Courts, is but a re-enactment of paragraph 16 of section 629 of the Revised Statutes, defining the jurisdiction of the Circuit Courts. The latter provides that the Circuit Courts shall have original jurisdiction "of all suits authorized by law"; whereas, the former provides that the District Courts shall have original jurisdiction "of all suits at law or in equity authorized by law." But this slight change does not enlarge the jurisdiction of the District Courts, especially in view of the fact that the limitation upon the power to issue writs of mandamus is found in section 716 of the Revised Statutes, which has been brought forward as section 262 of the Judicial Code (Comp....
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Marshall v. Wyman
...settled in the cases following: Covington & Cincinnati Bridge Co. v. Hager, 1906, 203 U.S. 109, 27 S.Ct. 24, 51 L.Ed. 111; Barber v. Hetfield, 9 Cir., 1925, 4 F.2d 245; Torre v. Fulton, 1 Cir., 1928, 28 F.2d 1020; Ballf v. Kranz, 9 Cir., 1936, 82 F.2d 315, certiorari denied, 1936, 299 U.S. ......
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...in the cases following: Covington and Cincinnati Bridge Co. v. Hager, 1906, 203 U.S. 109, 27 S.Ct. 24, 51 L.Ed. 111; Barber v. Hetfield, 9 Cir., 1925, 4 F.2d 245; de la Torre v. Fulton, 1 Cir., 1928, 28 F.2d 1020; Ballf v. Kranz, 9 Cir., 1936, 82 F.2d 315, certiorari denied, 1936, 299 U.S. ......
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Howell v. Brown, Civ. No. 50-49.
...v. Langley, 4 Cir., 139 F.2d 115; Fineran v. Bailey, 5 Cir., 2 F.2d 363; Youngblood v. United States, 6 Cir., 141 F.2d 912; Barber v. Hetfield, 9 Cir., 4 F.2d 245; Dwyer v. Le Flore County, Oklahoma 10 Cir., 97 F.2d 823; including the Court of Appeals, Eighth Circuit. Evans v. Yost, 8 Cir.,......
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...the plaintiff's suggestion of mandamus as a remedy is unsound. Youngblood v. United States, 6 Cir., 141 F.2d 912, 914, 915; Barber v. Hetfield, 9 Cir., 4 F.2d 245; Rosenbaum v. Bauer, 120 U.S. 450, 7 S.Ct. 633, 30 L.Ed. 743. But plaintiff has made its allegations full and complete, and has ......