IN RE J. RAY MCDERMOTT & CO., INC
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The court held that the applicant's predicate for seeking leave to file a petition for mandamus was not correct, as the order's appealability was not free from doubt.
An applicant sought leave to file a petition for mandamus, asserting the order below was not appealable. Opponents countered that the order was appeal…
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PER CURIAM.
Recognizing in its petition for leave to file that where an appeal lies a petition for mandamus cannot be made to serve its purpose, applicant, as a ground for granting leave to file it, alleges that the order from which it seeks relief is not appealable, citing 28 U.S.C.A. Sec. 1292.
Opponents of the petition put forward as their first counter proposition that “mandamus is improper because the district judge’s decision is appealable”, citing in support A. C. Dodge, Inc., v. J. M. Carras, Inc., 2 Cir., 218 F. 2d 911.
Other cases having bearing on the point are Schoenamsgruber v. Hamburg-American Line, 294 U.S. 454, 55 S.Ct. 475, 79 L.Ed. 989; Stark v. Texas Co., 5 Cir., 88 F. 2d 182; Postal S.S. Co. v. International Freighting Corp., 5 Cir., 133 F. 2d 10; Hedger Transp. Corp. v. Gallotta, 2 Cir., 145 F. 2d 870; George J. Waldie Towing Co. v. Ricca, 2 Cir., 227 F. 2d 900; In re Wills Lines, 2 Cir., 227 F. 2d 509; St. Louis Shipbuilding & Steel Co. v. Petroleum Barge Co., 8 Cir., 249 F. 2d 905, 907; Cummings v. Redeeriaktieb Trans-Atlantic, 3 Cir., 242 F. 2d 275, 276; United States v. The Lake George, 3 Cir., 224 F. 2d 117, 118; Emerick v. Lambert, 6 Cir., 187 F. 2d 786, 788; The Helen L., 9 Cir., 109 F. 2d 884; Diacon-Zadeh v. Denizyollari, 3 Cir., 196 F. 2d 491.
In the light of these cases, which to say the least show that the matter is not free from doubt, we cannot at this time accept as correct petitioner’s predicate for the leave it seeks. The petition for leave is therefore denied without prejudice to the right of the applicant to renew it if and when it has without avail sought relief by appeal.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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J. RAY McDERMOTT & Co., Inc. v. Hunt OIL Co. & Ark. Fuel Oil Corp., 262 F.2d 127 (5th Cir. 1959)
Authorities Cited (13 total)
- Hildegard Schoenamsgruber v. Hamburg Am. Line, 294 U.S. 454 (U.S. 1935)
- W. E. Hedger Transp. Corp. v. Gallotta, 145 F.2d 870 (2d Cir. 1944)
- Stark v. Tex. Co., 88 F.2d 182 (5th Cir. 1937)
- In re the Petition of Wills Lines, Inc., 227 F.2d 509 (2d Cir. 1955)
- ST. Louis Shipbuilding & Steel Co. v. Petroleum Barge Co., Inc., 249 F.2d 905 (8th Cir. 1957)
- Cummings v. Redeeriaktieb Transatlantic, 242 F.2d 275 (3d Cir. 1957)
- The Helen L. Red Bluff Bay Fisheries, Inc. v. Jurjev, 109 F.2d 884 (9th Cir. 1940)
- Postal S. S. Co., Inc. v. Int'l Freighting Corp., 133 F.2d 10 (5th Cir. 1943)
- Emerick et ux. v. Lambert, 187 F.2d 786 (6th Cir. 1951)
- United States v. THE Lake George, 224 F.2d 117 (3d Cir. 1955)