Wabash Ry. Co. v. Woodrough

• Decision Date: 30 November 1928
• Docket Number: No. 350.,350.
• Citation: 29 F.2d 832
• Parties: WABASH RY. CO. v. WOODROUGH, District Judge, et al.
• Court: U.S. Court of Appeals — Eighth Circuit

29 F.2d 832 (1928)

WABASH RY. CO. v. WOODROUGH, District Judge, et al.

No. 350.

Circuit Court of Appeals, Eighth Circuit.

November 30, 1928.

Homer Hall, of St. Louis, Mo. (John Lee Webster and R. B. Hasselquist, both of Omaha, Neb., on the brief), for petitioner.

Miles Elliott, of St. Joseph, Mo. (Donald W. McNeil, of Park Rapids, Minn., and Joseph P. Gray and Emmet S. Brumbaugh, both of Omaha, Neb., on the brief), for respondents.

Before BOOTH, Circuit Judge, and POLLOCK and DEWEY, District Judges.

BOOTH, Circuit Judge.

This is an original proceeding in this court for leave to file a petition for a writ of mandamus. The questions presented grow out of the same controversy as that involved in No. 8112, Wabash Railway Co. v. Lindley, 29 F.(2d) 829, opinion in which case is filed at the same time with this. The salient facts in the matter are set out in the opinion in that case and need not be here repeated. After suing out the writ of error in that case to review the orders of the District Court remanding the case and dissolving the restraining order, the petition in this proceeding was filed for the reason, as stated by counsel for petitioner:

"* * * The petitioner is, nevertheless, in doubt whether the action, order and decree of said United States District Court is reviewable in this court by reason of the provisions of section 28 of the Judicial Code, which provides that no appeal or writ of error from the decision of a District Judge remanding a cause shall be allowed."

The prayer of the petition which is sought to be filed in the present proceeding is that a writ of mandamus be issued, directed to the judge of the trial court which made the orders in No. 8112, requiring him "to set aside the order and decree of said court remanding said cause to said district court of Douglas county, and to recall the mandate, record and proceedings transmitted from said United States District Court to said district court of Douglas county, directing and requiring him, as judge of said court, to reinstate and restore said cause and all the records and proceedings therein as fully and to the same extent as before the entry of said order remanding said cause, and requiring and directing that said court retain and hold jurisdiction of said cause until the same be heard, determined and adjudicated in the manner and upon proceedings as provided by law."

It is well settled that this court has authority to issue writs of mandamus to federal District Courts in aid of its appellate jurisdiction and for that purpose only. Section 262 Judicial Code (28 USCA § 377); Barber Asphalt Pav. Co. v. Morris, 132 F. 945 (C. C. A. 8), 67 L. R. A. 761; Schendel v. McGee, 300 F. 273 (C. C. A. 8). In the Barber Asphalt Pav. Co. Case the court said (132 F. 952):

"Writs of mandamus are among those `not specifically provided for by statute which may be necessary for the exercise of their respective jurisdictions' within the meaning of this section. Bath County v. Amy, 13 Wall. 244, 249, 20 L. Ed. 539; Kendall v. United States, 12 Pet. 622, 9 L. Ed. 1181. The power to issue writs of mandamus was granted to the Supreme Court by section 688 of the Revised Statutes 28 USCA § 342, but the limit of the power of that court and of this is the same. Each court has jurisdiction to issue the writ to a subordinate court or judge in the exercise of and in aid of its appellate jurisdiction. It is without power to issue it in a case which is not reviewable in that court by appeal or writ of error challenging its final decision, or otherwise, or to issue it to create a case for the exercise of its appellate jurisdiction."

But this court has no appellate jurisdiction over orders of federal District Courts remanding cases to state courts. Section 28 of the Judicial Code (28 USCA § 71) expressly denies such jurisdiction to appellate courts. It reads so far as here material:

"* * * Whenever any cause shall be removed from any state court into any District Court of the United States, and the District Court shall decide that the cause was improperly removed, and order the same to be remanded to the state court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the district court so remanding such cause shall be allowed."

It is also well settled that in view of this provision of the Judicial Code review by way of writ of mandamus is also cut off. Ex parte Matthew Addy S. S. Corp., 256 U. S. 417, 41 S. Ct. 508, 65 L. Ed. 1027. It would seem to follow that no review of the order of remand in case No. 8112 can be had by means of a writ of mandamus, and...