Erie Bank v. UNITED STATES DISTRICT COURT FOR DIST. OF COL., 8733.

• Decision Date: 24 June 1966
• Docket Number: No. 8733.,8733.
• Citation: 362 F.2d 539
• Parties: The ERIE BANK, a Colorado state bank, Petitioner, v. The UNITED STATES DISTRICT COURT FOR the DISTRICT OF COLORADO and the Honorable William E. Doyle, one of the Judges thereof, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

362 F.2d 539 (1966)

The ERIE BANK, a Colorado state bank, Petitioner, v. The UNITED STATES DISTRICT COURT FOR the DISTRICT OF COLORADO and the Honorable William E. Doyle, one of the Judges thereof, Respondents.

No. 8733.

United States Court of Appeals Tenth Circuit.

June 24, 1966.

Ira C. Rothgerber, of Rothgerber, Appeal & Powers, Denver, Colo., for petitioner.

Edward C. Hastings, of Hastings & Chisen, Denver, Colo., for National Dental Plan, Inc.

Before BREITENSTEIN, HILL and SETH, Circuit Judges.

HILL, Circuit Judge.

This is an original proceeding filed by petitioner, The Erie Bank, a Colorado State bank, to compel the United States District Court for the District of Colorado and the Honorable William E. Doyle, one of the judges of that court, to dismiss a counterclaim filed in an interpleader suit by a claimant to the fund against the plaintiff and to sustain objections to interrogatories propounded by the claimant to the interpleading plaintiff.

The Erie Bank, a Colorado corporation, filed its complaint in the United States District Court for the District of Colorado against the National Dental Plan, Inc., a Colorado corporation, Dennis Radford, Jr., and Robert C. Montrose, as defendants. The action was in the form of an interpleader and the jurisdiction of the court was invoked pursuant to 28 U.S.C. § 1335. Plaintiff disclaimed any interest in the fund interpleaded. In answer, defendant National Dental Plan, Inc., admitted certain paragraphs of the complaint and denied generally the remaining part. It also filed a counterclaim against the bank claiming damages in the amount of $125,000 and a cross-claim against the other two defendants as to the entire interpleaded fund. The bank filed a motion to dismiss the counterclaim on the ground it was not an "opposing party" within the meaning of Rule 13, F.R.Civ. P. It also objected, by motion, to interrogatories propounded to it by National on the ground that it is not an adverse party under Rule 33, F.R.Civ.P. The trial judge denied both motions, permitting all parties to proceed with discovery and recited in his order "At the pre-trial conference, or at such later time as sufficient facts are disclosed, Erie may renew its motions."

Because the order complained of is not a final order and thus not appealable, petitioner has resorted to Section 1651, the All Writs Act, asking this court to grant relief in the alternative, either by the issuance of a writ of prohibition or a writ of mandamus. Under this Act, a Court of Appeals may issue an appropriate writ in aid of both its then existing or its prospective jurisdiction which the Congress has given it over district courts.¹ Such appellate court has authority to issue an appropriate writ to review a non-appealable interlocutory order, as is presented here, where the court has appellate jurisdiction over a final judgment to be rendered in the case and it is improper to postpone review until a final...