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Mutual Life Insurance Co. v. Ginsburg

decided: January 10, 1956.


Author: Goodrich

Before GOODRICH, McLAUGHLIN and STALEY, Circuit Judges.

GOODRICH, Circuit Judge.

These two pieces of litigation are between the same parties and revolve around the same subject matter. While the questions are different the two cases are, for convenience, treated in one opinion.


The first case is an appeal from an order made by a judge in the Western District of Pennsylvania ordering a case to be transferred from that district to the District of Arizona.*fn1 The authority for the transfer was section 1404(a) of 28 U.S.C. which reads as follows:

"(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."

Problems arising under this section are not unknown to this Court. We have held that the exercise of the district judge's discretion in this matter is not to be reviewed by mandamus or prohibition. All States Freight, Inc., v. Modarelli, 3 Cir., 1952, 196 F.2d 1010. We did say a writ should issue in one case but that was not to review the judge's discretion but to indicate that he did have a discretion to exercise. Paramount Pictures, Inc., v. Rodney, 3 Cir., 1950, 186 F.2d 111, certiorari denied 340 U.S. 953, 71 S. Ct. 572, 95 L. Ed. 687. Subsequently, when a transfer under the provisions of 1406(a) of 28 U.S.C. was challenged, we declined to review by writ the court's power to make the order. In doing so we acknowledged that our theory was in conflict with that espoused by several other circuits in 1404(a) transfer cases. Gulf Research & Development Co. v. Leahy, 3 Cir., 1951, 193 F.2d 302, 305, affirmed per curiam by an equally divided Court 344 U.S. 861, 73 S. Ct. 102, 97 L. Ed. 668, rehearing denied 344 U.S. 900, 73 S. Ct. 273, 97 L. Ed. 695; cf. Bankers Life & Casualty Co. v. Holland, 1953, 346 U.S. 379, 74 S. Ct. 145, 98 L. Ed. 106.

In this litigation the appellant has already applied to this Court for writs of prohibition and mandamus respectively. This Court has denied, without issuing a rule to show cause, the application in both instances. Prohibition was denied on December 7, 1954; mandamus was denied on October 6, 1955. So we are not confronted here with the question whether in an extraordinary case the appeal should be treated as an application for mandamus or prohibition. Cf. 6 Moore, Federal Practice P54.10[4], p. 93 (1953). Since the writs have been denied, that is the end of the matter so far as the extraordinary relief is concerned.*fn2

We have here then a case in which the appeal comes somewhat out of the usual order, the application for the extraordinary writs having been made first. This Circuit has been very explicit in holding that an order of transfer made under section 1404(a) is an interlocutory order and not appealable. Tivoli Realty, Inc., v. Paramount Pictures, Inc., 3 Cir., 1950, 186 F.2d 120, a per curiam following the decision of the Court in Paramount Pictures, Inc., v. Rodney, supra.See authorities cited in All States Freight, Inc., v. Modarelli, supra; cf. Bankers Life & Casualty Co. v. Holland, supra, 346 U.S. at page 382, 74 S. Ct. 145. This is the view set out in 6 Moore, Federal Practice P54.12[1], p. 115; P54.14, p. 140 (1953).

This point decides the case in accordance with the motion made by the appellee to dismiss because the order of the district judge was interlocutory and not appealable.

The motion to dismiss will be granted.


The appellant's second appeal has to do with the propriety of a fee allowed a guardian ad litem payable from a fund in the custody of the Court.*fn3 This guardian ad litem was appointed to protect the interest of minors who may have a claim to the fund. It is found as a fact that they are without means to prosecute the case themselves. The appointment was not objected to, in the first instance, by the appellant herein although he did object to the temporary appointment being made permanent.

The first question involved is whether the order appealed from is appealable at this stage. We think the answer to that question is "yes." The order directing payment disposes of a portion of the fund which is within the control of the court and, to that extent, is final in the disposition made. Two cases involving allowing fees in trust and receivership cases are directly in point. Trustees v. Greenough, 1881, 105 U.S. 527, 531, 26 L. Ed. 1157; Fahey v. Calverley, ...

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