In re MacNeil Bros. Company

• Decision Date: 03 October 1958
• Docket Number: No. 5413 Original.,5413 Original.
• Citation: 259 F.2d 386
• Parties: Matter of MacNEIL BROS. COMPANY, Adrian Corporation, Belknap Corporation, Concord Corporation, Delmont Corporation and Boston Development Corporation, Petitioners.
• Court: U.S. Court of Appeals — First Circuit

259 F.2d 386 (1958)

Matter of MacNEIL BROS. COMPANY, Adrian Corporation, Belknap Corporation, Concord Corporation, Delmont Corporation and Boston Development Corporation, Petitioners.

No. 5413 Original.

United States Court of Appeals First Circuit.

October 3, 1958.

Angus M. MacNeil, Somerville, Mass., for petitioners.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

PER CURIAM.

We have before us a motion filed Sept. 23, 1958, for leave to file, in typewritten form, a petition for Writ of Mandamus or for Mandatory Injunction, naming as respondent Honorable Bailey Aldrich, United States District Judge for the District of Massachusetts.

While we would be inclined to allow the petition to be filed in typewritten form if it were otherwise appropriate, we are of the opinion that the proposed petition on its face is so obviously without merit that we do not propose to require respondent to waste his time in answering an order to show cause. Accordingly, we shall enter an order denying leave to file the petition.

The proposed petition states that our "jurisdiction of this case arises from the general supervisory powers of the Courts of Appeals over the judges of the District Courts of the United States." We disclaim any such function. Our jurisdiction is purely statutory in accordance with the authority Congress has given us. Primarily we are an appellate court, but we are given a limited power to issue writs in aid of our appellate or potential appellate jurisdiction, in 28 U.S.C. § 1651 reading in part as follows: "The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." As we pointed out in In re Josephson, 1 Cir., 1954, 218 F.2d 174, 177, "Contrary to the view which seems to have been occasionally taken, or at least sub silentio assumed, in other courts of appeals, we do not think that 28 U.S.C. § 1651 grants us a general roving commission to supervise the administration of justice in the federal district courts within our circuit, and in particular to review by a writ of mandamus any unappealable order which we believe should be immediately reviewable in the interest of justice."

We do not now have before us any record of the proceedings in the United States District Court as certified by the Clerk thereof. All we know is what is set forth in the petition for Writ of Mandamus, which proposes to "incorporate by reference" certain proceedings in the State courts of Massachusetts.

The petition asserts that MacNeil Bros. Company, a Massachusetts corporation, "brought a suit for redemption of certain real estate in Greater Boston against State Realty Company of Boston Inc. from the operation of a mortgage. This suit was brought in the Superior Court of Massachusetts for the County of Middlesex and was known as case 18671 eq. at said court." Later it is alleged that "* * * the said Petitioners herein except MacNeil Bros. Company filed a Petition for Removal of said suit 18671 to the United States District Court for the District of Massachusetts from the Superior Court for Middlesex County." These other petitioners are said to be Adrian Corporation, Belknap Corporation, Concord Corporation, Delmont Corporation and Boston Development Corporation, all incorporated in Massachusetts. Since it does not appear that these other petitioners herein were ever parties to the suit in the State court commenced by MacNeil Bros. Company, we do not perceive what standing they had to petition for removal of the litigation to the federal court. At all events, the District Court entered its order, now sought to be reviewed, dismissing said petition for removal.

The present petition for Writ of Mandamus does not quote the text of this order of the District Court nor even give its date. As a matter of curiosity, we directed our Clerk to inspect the records in the District Court and he has reported to us that on April 7, 1958, Judge Aldrich issued an order of dismissal reading as follows: "Having examined the Petition for Removal, so-called, and all papers accompanying same filed therewith, the only matter that is clear to the court is that the petition must be, and it hereby is, dismissed, for, among other reasons, lack of jurisdiction."

The removal provisions of the Judicial Code contain no reference to any such type of order. Under 28 U.S.C. § 1446 it seems that a case is effectively removed from the jurisdiction of a State court by a filing in the proper District Court of the United States of a "petition for removal" by a "defendant or defendants desiring to remove any civil action or criminal prosecution from a State court". It is contemplated that sometimes a case may thus physically be removed "improvidently and without jurisdiction," for in that event the federal district court is directed by 28 U.S.C. § 1447(c) to "remand the case". 28 U.S.C. § 1446(e) provides that "Promptly after the filing of such petition and bond the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the petition with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded." It seems that the District Judge here was of the view that...