Christopher v. American News Co., 9918.
| Decision Date | 22 July 1949 |
| Docket Number | No. 9918.,9918. |
| Citation | 176 F.2d 11 |
| Parties | CHRISTOPHER v. AMERICAN NEWS CO. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Irving Breakstone, Chicago, Ill., for appellant.
Arthur J. Goldberg, Carl Devoe, Abraham W. Brussell, Milton I. Shadur, Chicago, Ill., for appellee.
Before KERNER and MINTON, Circuit Judges.
In another aspect of this case this court decided that the complaint stated a claim upon which relief could be granted. Christopher v. American News Co., 7 Cir., 171 F. 2d 275. The defendant, The American News Company, answered over and plaintiff moved to strike certain portions of the answer. Before plaintiff's motion was disposed of, defendant filed a motion and supporting affidavit to transfer the cause to the United States District Court for the Southern District of New York under New Federal Judicial Code Sec. 1404(a), 28 U.S. C.A. § 1404(a). The affidavit alleged among other things that plaintiff has pending an action entitled Louis C. Christopher v. The Nation Associates, Inc., and Paul L. Klein, No. 45-464, at issue and awaiting trial in the United States District Court for the Southern District of New York; that the two defendants in that cause, as publisher and author, respectively, of the article complained of, are in fact the principal defendants in any cause of action the plaintiff may have; and that a transfer of the trial of this action to New York would save duplication in the production of witnesses and documents and time and expense to the parties.
After brief oral proceedings wherein plaintiff apparently moved the court to pass on his motion to strike, the court entered an order of two parts: One, granting defendant's motion to transfer the cause to the United States District Court for the Southern District of New York; and, two, denying plaintiff's oral motion for a ruling on plaintiff's motion to strike the answer, after finding that for the better administration of justice the judge of the court who will try the case is the proper judge to rule thereon. The plaintiff filed notice of appeal from both parts of this order. The defendant thereupon filed a motion in this court to dismiss the appeal on the ground that the court's order was not final and, therefore, not appealable, New Federal Judicial Code, Sec. 1291, 28 U.S.C.A. § 1291.
Without deciding whether the order appealed from is appealable or not, we think this appeal should be dismissed. The order discloses on its face that it was based on the power given to the District Court by 28 U.S.C.A. § 1404(a): "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."
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