Bedgisoff v. Cushman

• Decision Date: 30 April 1926
• Docket Number: No. 4731.,4731.
• Citation: 12 F.2d 667
• Parties: BEDGISOFF v. CUSHMAN, District Judge, et al.
• Court: U.S. Court of Appeals — Ninth Circuit

12 F.2d 667 (1926)

BEDGISOFF v. CUSHMAN, District Judge, et al.

No. 4731.

Circuit Court of Appeals, Ninth Circuit.

April 30, 1926.

G. F. Vanderveer and S. B. Bassett, both of Seattle, Wash., for petitioner.

Carroll B. Graves, of Seattle, Wash., for respondents.

Before HUNT, RUDKIN, and McCAMANT, Circuit Judges.

McCAMANT, Circuit Judge.

Petitioner brought an action against American Express Company in the District Court for the Western District of Washington, Northern Division, claiming damages for the breach of a contract to remit a sum of money to a bank at Vladicaucase, Russia, for petitioner's credit. The case was put at issue November 29, 1920, and since that date petitioner has made repeated efforts to have the case tried. The American Express Company has resisted these efforts, claiming that by reason of the conditions obtaining in Russia it is unable to secure the evidence essential to its defense. On the 15th of November, 1921, the District Court continued the cause until the expiration of four months "following the date upon which the United States government shall have recognized the existence of a government in Russia." On the 21st of May, 1925, the court denied petitioner's motion to vacate this order. The answer admits these facts. The trial court is vested with discretion to grant and refuse continuances. This discretion should be exercised in such manner as to assure the parties a fair trial without undue delay. It is eminently proper that the trial of a cause should be deferred for a reasonable time, at the request of either party, to enable him to secure his evidence and properly present his contentions. There is a correlative right to a trial within a reasonable time. The discretion of the trial court in these matters is ordinarily not reviewable. Copper River Co. v. McClellan, 138 F. 333, 339, 70 C. C. A. 623. But where the District Court refuses for several years to set for trial a cause which is at issue, and of which this court would have jurisdiction on appeal or writ of error, this court may entertain a proceeding in mandamus in aid of its appellate jurisdiction. McClellan v. Carland, 217 U. S. 268, 280, 30 S. Ct. 501, 54 L. Ed. 762; Barber Asphalt Co. v. Morris, 132 F. 945, 66 C. C. A. 55, 67 L. R. A. 761; Pacific Telephone & Telegraph Co. v. Cushman (C. C. A.) 292 F. 930, 932. In such case, if it appear that the refusal of the trial court to hear the cause is unwarranted, it is the duty of this court to require the trial court to proceed.

It is contended that the order of November 15, 1921, was a final order, reviewable on writ of error, and that petitioner is bound by it; he having sued out no writ of error for its review. In support of this contention respondent relies on Gay v. Hudson River Co., 184 F. 689, 106 C. C. A. 643; Central Trust Co. v. Chicago, R. I. & P. R. Co., 218 F. 336, 339, 134 C. C. A. 144; Odell v. H. Batterman Co., 223 F. 292, 295, 296, 138 C. C. A. 534; American Brake Shoe Co. v. New York Railways Co. (C. C. A.) 282 F. 523, 527. The orders appealed from in the first three of these cases definitely and finally denied the appellants the right to be heard; in the fourth case, the order appealed from disposed of app...