Jiffy Lubricator Co. v. Stewart-Warner Corporation

• Decision Date: 10 October 1949
• Docket Number: No. 5979.,5979.
• Citation: 177 F.2d 360
• Parties: JIFFY LUBRICATOR CO., Inc. v. STEWART-WARNER CORPORATION.
• Court: U.S. Court of Appeals — Fourth Circuit

177 F.2d 360 (1949)

JIFFY LUBRICATOR CO., Inc. v. STEWART-WARNER CORPORATION.

No. 5979.

United States Court of Appeals Fourth Circuit.

Argued October 7, 1949.

Decided October 10, 1949.

Leonard L. Kalish, Philadelphia, Pa. (Guy B. Hazelgrove, Littleton M. Wickham, and Williams, Mullen & Hazelgrove, Richmond, Va., on brief), for appellant.

Thomas B. Gay, Richmond, Va. (Winston, Strawn, Shaw & Black, Hinkle, Horton, Ahlberg, Hansmann & Wupper, Chicago, Ill., Hunton, Williams, Anderson, Gay & Moore, Richmond, Va., John D. Black and Elwood Hansmann, Chicago, Ill., on brief), for appellee.

Before PARKER, Chief Judge and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

This is a motion to dismiss an appeal from an order transferring a civil action from the Eastern District of Virginia to the Northern District of Illinois for the convenience of parties and witnesses pursuant to 28 U.S.C.A. § 1404(a). Plaintiff is a North Dakota corporation, defendant a corporation of Virginia, having its office and principal place of business in the Northern District of Illinois. The action was one for treble damages on account of patent infringement and the transfer was made in the interest of justice for the convenience of parties and witnesses on affidavits which amply justified the transfer. There is nothing to indicate any abuse of discretion in entering the order.

The motion to dismiss must be granted on the ground that the order transferring the case is not a final order from which an appeal lies under 28 U.S.C.A. § 1291. As was said by the Supreme Court in Arnold v. United States for use of W. B. Guimarin & Co., 263 U.S. U.S. 427, at page 434, 44 S.Ct. 144, at page 147, 68 L. Ed. 371: "It is well settled that a case may not be brought here by writ of error or appeal in fragments, that to be reviewable a judgment or decree must be not only final, but complete, that is, final not only as to all the parties, but as to the whole subject-matter and as to all the causes of action involved; and that if the judgment or decree be not thus final and complete, the writ of error or appeal must be dismissed for want of jurisdiction. Hohorst v. Hamburg-American Packet Co., 148 U.S. 262, 264, 13 S.Ct. 590, 37 L.Ed. 443; Collins v. Miller, 252 U.S. U.S. 364, 370, 40 S.Ct. 347, 64 L.Ed. 616; Oneida Navigation Corporation v. W. & S. Job & Co., 252 U.S. 521, 522, 40 S.Ct. 357, 64 L.Ed. 697; and cases therein cited." See also Western Contracting Corp. v. National Surety Corp., 4 Cir., 163 F.2d 456; Bowles v. Commercial Casualty Ins. Co., 4 Cir., 107 F.2d 169; Hyman v. McLendon, 4 Cir., 102 F.2d 189, 190; Fields v. Mut. Benefit Life Ins. Co., 4 Cir., 93 F.2d 559, 561; Lockhart v. New York Life Ins. Co., 4 Cir., 71 F.2d 684; Toomey v. Toomey, 80 U.S.App.D.C. 77, 149 F.2d 19.

The general rule is well settled that an order granting or refusing change of venue is not appealable unless expressly made so by statute. 3 C.J. p. 473; 4 C.J.S., Appeal and Error, § 115; 2 Am.Jur. 899-900; Shay v. Rinehart & Dennis Co., 116 W.Va. 24, 178 S.E. 272, and cases there cited. There is no federal statute expressly granting an appeal from such orders; and the federal decisions follow the general rule that they are not appealable. Cook v. Burnley, 11 Wall. 659, 672, 20 L.Ed. 84; Kennon v. Gilmer, 131 U.S. 22, 24, 9 S.Ct. 696, 33 L.Ed. 110.

Counsel for plaintiff rely upon decisions permitting appeals from dismissals in application of the principle of forum non conveniens; but these decisions are not in point. A dismissal in application of that or any other principle puts an end to the action and hence is final and appealable. An order transferring it to another district does not end but preserves it as against the running of the statute of limitations and for all other purposes. The notion that 28 U.S.C.A. § 1404(a) was a mere codification of existing law relating to forum non conveniens is erroneous. It is perfectly clear that the purpose of this section of the Revised Judicial Code was to grant broadly the power of transfer for the convenience of parties and witnesses, in the interest of justice, whether dismissal under the doctrine of forum non conveniens would have been appropriate or not. See Ex parte Collett 337 U.S. 55, 69 S.Ct. 944, 959; Kilpatrick v. Texas & P. R. Co., 337 U.S. 75, 69 S.Ct. 953; United States v. National City Lines, 337 U.S. 78, 69 S.Ct. 955, and Amalgamated Association, etc., v. Southern Bus Lines, 5 Cir., 172 F.2d 946, 948. As said by judge Sibley in the case last cited: "Dismissal for inconvenience is not to be visited except when the choice of forum is a real hardship, or an imposition on the court. But here again we meet the Revision of Title 28, for Section 1404 providing for a change of venue is: `(a) For the convenience...