Hudson Lumber Co. v. United States Plywood Corp., 12429.

Decision Date05 May 1950
Docket NumberNo. 12429.,12429.
Citation181 F.2d 929
PartiesHUDSON LUMBER CO. et al. v. UNITED STATES PLYWOOD CORPORATION et al.
CourtU.S. Court of Appeals — Ninth Circuit

Bruner & Gilmore, San Leandro, Cal., McKee, Tasheira & Wahrhaftig, Ridley Stone, Jr., Oakland, Cal., for appellants.

McMicken, Rupp & Schweppe, Alfred J. Schweppe, Seattle, Washington, Krause, Hirsch, Levin & Heilpern, Raymond T. Heilpern, New York City, Pillsbury, Madison & Sutro, Eugene M. Prince, San Francisco, Cal., for appellees.

Before MATHEWS, STEPHENS and ORR, Circuit Judges.

MATHEWS, Circuit Judge.

This appeal is from an interlocutory order in an action brought by appellants, Hudson Lumber Company and Elkins Sawmill, Inc., against appellees, United States Plywood Corporation and Shasta Plywood, Inc. The action was brought in the Superior Court of Alameda County, California, but, on petition of appellees, was removed from that court to the United States District Court for the Northern District of California.

The order stayed the trial of the action on application of appellees pursuant to 9 U.S.C.A. § 3.1 Such a stay is, in effect, an injunction.2 Hence the order was appealable.3

The complaint alleged, in substance, that Hudson Lumber Company and United States Plywood Corporation made an agreement in writing on December 9, 1947, and that Elkins Sawmill, Inc., and Shasta Plywood, Inc., had some interest in the agreement. A copy of the agreement was attached to the complaint. The complaint quoted the provisions of paragraphs 3(a) (ii) and 3(a) (vi) of the agreement, alleged that there was an actual controversy between appellants and appellees as to the meaning, effect and operation of the quoted provisions and prayed for a "decree of the District Court determining and declaring the rights and duties of the parties under said agreement, and particularly the true meaning, effect and application of the said quoted provisions thereof * * and settling and determining said controversy."

Obviously, the issue upon which the action was brought4 was as to the construction and operation of paragraphs 3(a) (ii) and 3(a) (vi) of the agreement and the respective rights and liabilities thereunder.

Paragraph 10 of the agreement provided: "It is hereby agreed that in case any disagreement or difference shall arise at any time hereafter between either of the parties hereto in relation to this agreement, either as to the construction or operation thereof, or the respective rights and liabilities thereunder, such disagreement shall be submitted to arbitration in the State of California, pursuant to the Rules of the American Arbitration Association as then in effect, but nothing herein shall be deemed to preclude either party from seeking injunctive relief to prevent irreparable injury by reason of a claimed breach of this agreement."

There was no claimed breach of the agreement. Hence appellants had no occasion to, and did not in fact, seek injunctive relief to prevent irreparable injury by reason of any such claimed breach. They did, in their complaint, seek injunctive relief, but, instead of seeking such relief to prevent irreparable injury by reason of a claimed breach of the agreement, they sought it to prevent the arbitration provided for in paragraph 10 — which, obviously, they had no right to do — and to prevent appellees from "commencing other actions or proceedings pending determination of this action, to enforce or recover their claimed rights under the matter in controversy" and from "canceling or attempting to cancel or declare forfeit the rights and interests of appellants under said agreement by reason of any claimed default resting in appellees' contentions as to the...

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7 cases
  • Baltimore Contractors v. Bodinger
    • United States
    • U.S. Supreme Court
    • January 10, 1955
    ...a denial of an injunction from which an appeal lies.' In view of the conflict between the decision below and Hudson Lumber Co. v. United States Plywood Corp., 9 Cir., 181 F.2d 929, we granted the petition, 347 U.S. 942, 74 S.Ct. Congress has long expressed a policy against piecemeal appeals......
  • Locals 2222, 2320-2327, Intern. Broth. of Elec. Workers, AFL-CIO v. New England Tel. and Tel. Co.
    • United States
    • U.S. Court of Appeals — First Circuit
    • August 12, 1980
    ...Co., 544 F.2d 1104 (1st Cir. 1976), cert. denied, 430 U.S. 916, 97 S.Ct. 1328, 51 L.Ed.2d 594 (1977); Hudson Lumber Co. v. United States Plywood Corp., 181 F.2d 929 (9th Cir. 1950); City of Naples v. Prepakt Concrete Co., 494 F.2d 511 (5th Cir.), cert. denied, 419 U.S. 843, 95 S.Ct. 76, 42 ......
  • Wilson Brothers v. Textile Workers Union of America, CIO
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 2, 1955
    ...Organization v. Republic S. S. Corp., 4 Cir., 189 F.2d 858. Of the two decisions looking the other way, one, Hudson Lumber Co. v. U. S. Plywood Corp., 9 Cir., 181 F.2d 929, which is factually on all fours with this case, has been recently criticized by implication in Baltimore Contractors v......
  • United States Plywood Corp. v. Hudson Lumber Co.
    • United States
    • U.S. District Court — Southern District of New York
    • June 30, 1953
    ...under a mandatory arbitration provision of the contract. The order staying the action was affirmed by the Court of Appeals on May 5, 1950, 181 F.2d 929. In March 1951 Hudson demanded arbitration and on November 5, 1951, a majority of the arbitrators handed down an award as "1. That the theo......
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