Kay Ferer, Inc. v. Hulen

• Decision Date: 21 March 1947
• Docket Number: No. 13507.,13507.
• Citation: 160 F.2d 146
• Parties: KAY FERER, Inc., v. HULEN et al.
• Court: U.S. Court of Appeals — Eighth Circuit

160 F.2d 146 (1947)

KAY FERER, Inc., v. HULEN et al.

No. 13507.

Circuit Court of Appeals, Eighth Circuit.

March 21, 1947.

A. B. Frey and Karol A. Korngold, both of St. Louis, Mo. (Frey & Korngold, of St. Louis, Mo., on the brief), for petitioner.

Albert M. Dreyer, Chief, Appellate Branch, Office of Temporary Controls, of Washington, D. C., for Philip B. Fleming, Adm'r., Office of Temporary Controls.

Before GARDNER, THOMAS and RIDDICK, Circuit Judges.

GARDNER, Circuit Judge.

This matter is before us on a petition for writ of mandamus, or in the alternative for writ of prohibition. On September 29, 1945, Chester Bowles, then Price Administrator of the Office of Price Administration, filed an action in the United States District Court for the Eastern District of Missouri against petitioner Kay Ferer, Inc., charging a violation of certain price regulations and seeking to recover triple damages because of such alleged violations. On April 1, 1946, Chester Bowles resigned as Price Administrator and Paul A. Porter was duly appointed as his successor in office and was duly substituted as plaintiff. Thereafter, and on February 24, 1947, Paul A. Porter having resigned as Price Administrator, Philip B. Fleming, as Administrator of the Office of Temporary Controls, filed his motion in said cause to be substituted as plaintiff in the place and stead of Paul A. Porter, Administrator, Office of Price Administration. Petitioner filed objections to the motion for substitution and on hearing the objections were overruled and an order entered sustaining the motion for substitution. The order recited that, "said Petitioner has been invested with all of the functions of the Price Administrator, Office of Price Administration, with full power and authority to continue and maintain in his name all civil proceedings heretofore instituted by the Price Administrator, and that there is substantial need for continuing and maintaining this action."

Following the order of substitution, petitioner filed its motion to dismiss the action for lack of jurisdiction, which motion was overruled. In its petition in this court petitioner alleges that the actions of respondent in overruling its objections to the motion for substitution, and in permitting the substitution of Philip B. Fleming as plaintiff, and in permitting Fleming to file an amended and supplemental complaint, and in overruling petitioner's motion to dismiss, were all in excess of respondent's jurisdiction. It is then alleged that unless this court issue its writ of mandamus, directing respondent to set aside said order overruling the objections of petitioner, the order of substitution, the order permitting the filing of an amended and supplemental complaint and the order overruling petitioner's motion to dismiss, and prohibit respondent from exercising further jurisdiction in said cause other than to dismiss the same, petitioner will suffer irreparable injury and be put to great loss of time and expense in the preparation of its defense and the trial of the action in that it has no adequate remedy by appeal; that the cause is one of a large number of similar cases that are pending in various District Courts of the Eighth Judicial District; that there have been at least two decisions of other United States District Courts holding that said Fleming has no right to such substitution, and that the conflict in rulings has created confusion and uncertainty and that the same involves a multiplicity of civil actions. It is then alleged that these facts reveal such special circumstances as to constitute this proceeding a rare and special case which requires the authoritative ruling on this question by this court. Other allegations go to the sufficiency of the motion for substitution. There is no allegation or claim that the other actions referred to are against petitioner or that it has any interest therein. Neither is there any claim that the cause of action abated with the resignation of the Price Administrator.

In our view of the applicable law it will not be necessary nor appropriate to consider the merits of petitioner's objection to the substitution of Fleming as plaintiff in the pending action against it, and we shall confine ourselves to a consideration of the question of practice and procedure.

Under the provisions of the Federal Constitution, art. 3, § 1, it is provided that judicial power shall be vested in the Supreme Court and such inferior courts as Congress may from time to time ordain or establish. Congress has power to confer original jurisdiction in mandamus on inferior federal courts, and Congress has conferred authority on federal courts to issue writs of mandamus to enforce certain specific acts or duties, and although the federal rules of civil procedure abolish writs of mandamus (Rule 81(b), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c), and provide that relief formerly available by mandamus may be obtained by appropriate actions or appropriate motions, the relief formerly obtainable by writ of mandamus is still available in federal courts and substantive rights are governed by the rules formerly applied in mandamus cases. Federal courts may issue writs of mandamus in aid of their jurisdiction. Appellate courts are courts of review, exercising authority to affirm, reverse...