In re Previn
| Citation | 204 F.2d 417 |
| Parties | In re PREVIN et al. |
| Decision Date | 20 May 1953 |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
Stanley H. Rudman, Joseph Schneider and Schneider, Reilly, Rudman & McArdle, all of Boston, Mass., for petitioners.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
We have before us a motion for leave to file a petition for a writ of mandamus, under 28 U.S.C. § 1651, directed to Hon. George C. Sweeney, Chief Judge of the United States District Court for the District of Massachusetts.
On July 28, 1952, petitioners filed in the district court a complaint sounding in tort, seeking recovery of $202,549 compensatory damages and $100,000 punitive damages in consequence of an elaborate fraud and conspiracy alleged to have been practiced by the named defendants and others. Federal jurisdiction was based upon diversity of citizenship. The defendants filed their answer to the complaint on September 5, 1952.
Rule 38(b), Fed.Rules Civ.Proc. 28 U.S. C., provides: No demand for a jury trial was indorsed by the plaintiffs upon their complaint, nor by the defendants upon their answer. On December 8, 1952, the clerk called the attention of counsel to the fact that no claim for jury trial had been filed.
On February 20, 1953, more than five months after the filing of the answer, the plaintiffs filed in the district court a motion asking the court in its discretion, pursuant to Rule 39(b), to order a trial by jury of all the issues in the case. Rule 39(b) provides: "Issues not demanded for trial by jury as provided in Rule 38 shall be tried by the court; but, notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any or all issues." Affidavits were filed by the plaintiffs in support of their motion and by the defendants in opposition. The opposing affidavit challenged the claim of plaintiffs that their failure to make seasonable demand for a jury trial was an oversight. It asserted that in the intervening months after the answer had been filed, defendants had taken various depositions on the assumption that the case was going to be tried to a judge without a jury. It further asserted that due to the technical nature and ramifications of proof to be anticipated, it would be preferable to have the case tried by the court without a jury; that the length of the trial would thereby be materially shortened. The affidavits of the respective parties were in conflict at many points. On March 31, 1953, Judge Sweeney denied the plaintiffs' motion under Rule 39(b).
The order denying this motion was obviously interlocutory in character. It was not one of the few types of interlocutory decisions which may be immediately reviewed upon appeal to this court under 28 U.S.C. § 1292. Nevertheless, petitioners would have us review the order under the "all-writs" section of the Code, 28 U.S.C. § 1651(a), reading: "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." It is asserted that the order denying plaintiffs' belated claim for a jury trial was improper and constituted an abuse of discretion, wherefore we are asked to issue a writ of mandamus commanding Judge Sweeney to grant to the petitioners a jury trial.
Petitioners are no doubt aware from our recent opinion in In re Chappell & Co., Inc., 1 Cir., 1953, 201 F.2d 343 that applications of this sort meet with a very inhospitable reception in this court. We have rejected the notion that 28 U.S.C. § 1651 is a substantive grant to us of jurisdiction to review in our discretion any unappealable interlocutory decision which we may think it would be desirable to review at once, without waiting for an appealable final decision below. The basic purpose of § 1651, and of its statutory predecessors, was to assure to the various federal courts the power to issue appropriate writs and orders of an auxiliary nature in aid of their respective jurisdictions as conferred by other provisions of law. It is recognized that there may be appropriate circumstances for the exercise of power under 28 U.S.C. § 1651, both in cases where our appellate jurisdiction has already attached and in cases where we have merely a potential appellate jurisdiction to review a final decision not yet rendered. An instance of the former is Price v. Johnston, 1948, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356, where the court of appeals had jurisdiction of a...
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In re Josephson
...very decided limitations upon its authority under 28 U.S.C. § 1651. In re Chappell & Co., Inc., 1 Cir., 1953, 201 F.2d 343; In re Previn, 1 Cir., 1953, 204 F.2d 417. We adhere to what we said in those cases. Contrary to the view which seems to have been occasionally taken, or at least sub s......
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In re Reyes, Bankruptcy No. 96-10402. Adversary No. 98-1064.
...and orders of an auxiliary nature in aid of their respective jurisdictions as conferred by other provisions of law." In re Previn, et al., 204 F.2d 417, 418 (1st Cir.1953) (emphasis added); see also Smith v. Keycorp Mortgage, Inc., 151 B.R. 870, 876 (N.D.Ill.1993) (Section 105 "does not of ......
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Ozenne v. Chase Manhattan Bank (In re Ozenne)
...their already-existing jurisdiction. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 175, 2 L.Ed. 60 (1803) ; see also In re Previn, 204 F.2d 417, 418 (1st Cir.1953). That means that the jurisdiction of any court must be established and pre-existing before it can issue an extraordinary writ. Thi......
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Black v. Boyd
...92 L.Ed. 355; Canister Co. v. Leahy, 3 Cir., 191 F.2d 255, certiorari denied 342 U.S. 893, 72 S.Ct. 201, 96 L.Ed. 669. Compare: In re Previn, 1 Cir., 204 F.2d 417, where the right to a jury trial was a matter within the discretion of the Court. Our previous ruling is controlling. Our conclu......