In re Kilpatrick, 12298

• Citation: 167 F.2d 471
• Decision Date: 13 April 1948
• Docket Number: No. 12298,12299.,12298
• Parties: In re KILPATRICK. In re PARKER.
• Court: U.S. Court of Appeals — Fifth Circuit

167 F.2d 471 (1948)

In re KILPATRICK. In re PARKER.

Nos. 12298, 12299.

Circuit Court of Appeals, Fifth Circuit.

April 13, 1948.

W. P. McLean, of Fort Worth, Tex., and William H. DeParcq, of Minneapolis, Minn., for petitioners.

W. B. Harrell, of Dallas, Tex., and Samuels, Brown, Herman & Scott, of Fort Worth, Tex., for respondent.

Before HUTCHESON, HOLMES, and WALLER, Circuit Judges.

PER CURIAM.

Petitioners, plaintiffs in separate suits in the court below, moved there for a dismissal without prejudice of their suits. Their motions denied, each filed notice of appeal. Alleging that respondent notwithstanding their appeals has set the causes for trial and, unless prohibited from doing so, would proceed to trial in them, each has filed a petition for writ of prohibition.

This court may issue writs of prohibition only in aid of its jurisdiction to review final decisions of the district courts.¹ It appears from the motion papers and the answers thereto that petitioners' attempted appeals from orders denying dismissal are not from final judgments.² It is quite plain that this court is without jurisdiction to consider the merits of the questions sought to be raised in the applications for the writs and that for want of jurisdiction the petitions must be denied.

1 28 U.S.C.A. § 225; Smith v. Whitney, 116 U.S. 167, 6 S.Ct. 570, 29 L.Ed. 601; In re The Petition of United States, 263 U.S. 389, 44 S.Ct. 130, 68 L.Ed. 351; Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185.

2 Grand Trunk Western R. Co. v. McHie, 6 Cir., 100 F.2d 86; Atlantic Coast Line R. Co. v. Winn, 5 Cir., 227 F. 50; Heike v. United States, 217 U.S. 423, 30 S.Ct. 539, 54 L.Ed. 821.