Columbia Boiler Co. of Pottstown v. Hutcheson

Decision Date25 May 1955
Docket NumberNo. 7001.,7001.
Citation222 F.2d 718
PartiesCOLUMBIA BOILER CO. OF POTTSTOWN, Inc., Petitioner, v. Honorable Sterling HUTCHESON, District Judge, Eastern District of Virginia, Respondent, and Manville Boiler Co., Inc., Intervenor.
CourtU.S. Court of Appeals — Fourth Circuit

Zachary T. Wobensmith, 2nd, Philadelphia, Pa. (Wirt P. Marks, Jr., Richmond, Va., on brief), for petitioner.

W. Brown Morton, Jr., New York City (Pennie, Edmonds, Morton, Barrows & Taylor, New York City, on brief), for intervenor.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PER CURIAM.

This is a petition for a writ of prohibition in a patent infringement suit instituted against the Columbia Boiler Co. of Pottstown, Inc., and Columbia Boiler Co., Inc. The first named of these corporations moved to quash the service of process and to dismiss the suit on the ground that it does not reside or have a regular and established place of business within the Eastern District of Virginia. The judge below denied the motions on the basis of the holding in Dalton v. Shakespeare Co., 5 Cir., 196 F.2d 469. It is admitted that the order denying the motions is not a final order and that petitioner cannot appeal from it. See Beury v. Beury, 4 Cir., 222 F.2d 464; E. I. Du Pont De Nemours Co., Inc., v. Hall, 4 Cir., 220 F.2d 514. We think it equally clear that writ of prohibition cannot be used as substitute for an appeal in such a case. Until Congress amends the statute so as to permit appeals from interlocutory orders of this character, we do not think that appellate courts should attempt to circumvent the law by the use of writs of prohibition or mandamus. In re Sylvania Electric Products, Inc., 1 Cir., 220 F.2d 423; Gulf Research & Development Co. v. Leahy, 3 Cir., 193 F.2d 302, affirmed 344 U.S. 861, 73 S.Ct. 102, 97 L.Ed. 668; Gulf Research & Development Co. v. Harrison, 9 Cir., 185 F.2d 457. Cf. C-O-Two Fire Equipment Co. v. Barnes, 7 Cir., 194 F.2d 410, affirmed 344 U.S. 861, 73 S.Ct. 102, 97 L.Ed. 695.

Petition denied.

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6 cases
  • Clayton v. Warlick
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • April 9, 1956
    ...interlocutory order from which Congress has not seen fit to grant a right of appeal. This may not be done. In Columbia Boiler Co. of Pottstown v. Hutcheson, 4 Cir., 222 F.2d 718, we dealt with an attempt to use a writ of prohibition to review an interlocutory order refusing to dismiss a pat......
  • Holub Industries, Inc. v. Wyche
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • May 13, 1961
    ...had taken place. See also Johnson & Johnson v. Picard, 6 Cir., 282 F.2d 386. The action of this court in Columbia Boiler Co. of Pottstown v. Hutcheson, 4 Cir., 222 F.2d 718, in denying a petition for a writ of mandamus was based, as our records show, upon the holding that jurisdiction again......
  • Clayton v. Swift & Company
    • United States
    • U.S. District Court — Eastern District of Virginia
    • June 8, 1955
    ...doctrine in Dalton v. Shakespeare, supra, but the factual situation is not revealed in the reported case of Columbia Boiler Co. of Pottstown, Inc., v. Hutcheson, 4 Cir., 222 F.2d 718. ...
  • Manville Boiler Co. v. Columbia Boiler Co. of Pottstown
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • January 23, 1962
    ...A petition for a Writ of Prohibition was then filed in the Circuit Court and also denied. See Columbia Boiler Co. of Pottstown, Inc. v. Hutcheson, 4 Cir., 222 F.2d 718 (4th Cir.1955). The case then proceeded to trial, both defendants being represented by the same counsel. After the trial wa......
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