Before BIGGS, Chief Judge, and GANEY and SMITH, Circuit Judges.
This case comes before us on a statement of agreed facts but some supplementation and correction of those facts is required, as will appear hereinafter. Central Rigging and Contracting Corporation of Connecticut (Central) sued the J. E. Miller Transfer and Storage Company (Miller) in the District Court for the Western District of Pennsylvania at Civil Action No. 61-257 (257). Central Rigging and Contracting Corporation of Connecticut v. J. E. Miller Transfer and Storage Company, D.C., 199 F.Supp. 40.*fn1 An amended complaint was filed on August 7, 1961, alleging that Central had delivered certain machinery to Miller at Paden City, West Virginia, to be transported by Miller to Martinsburg, West Virginia. Central further alleged that Miller had delivered the machinery in a damaged condition, the damage having occurred while the machinery was in Miller's custody. Jurisdiction was based on diversity only. Miller filed an answer to the amended complaint on August 8.
On September 25, 1961, Central brought suit in the court below at CA No. 61-565 (565) against Swindell-Dressler Corporation (Swindell), juris-diction again being based on diversity of citizenship and jurisdictional amount. In this suit Central sought to recover a balance alleged to be due it on a contract for services rendered by Central to Swindell in dismantling a brick kiln in Paden City, West Virginia, and moving it to Martinsburg in that state. The kiln appears to have been part of the machinery which was the subject of the suit at 257. None of the services were performed in Pennsylvania. On October 12, Swindell filed an answer to this complaint.
On October 24, 1961, Miller at 257 filed a motion to change the venue of the suit and to transfer it to the United States District Court for the Northern District of West Virginia.
On November 7, 1961, Central filed a petition to consolidate the suit at 565 with the suit at 257 for the purposes of pretrial and trial. The petition stated that there were questions of fact common to both suits and that the parties in the two suits had engaged in a series of transactions to arrange for the relocation of a brick kiln in Martinsburg. Swindell, of course, was not a party to the suit at 257, and did not take part in any proceedings in that case.
On November 9, 1961, Judge Dumbauld entered an order transferring 257 to the United States District Court for the Northern District of West Virginia.*fn2 According to the statement of agreed facts Judge Dumbauld granted this motion without a hearing. The legality of this transfer is, of course, not before us here.
About one month later, on November 29, 1961, the clerk of the court below gave written notice to counsel for Central, Swindell and Miller that Central's petition for consolidation would be heard on Monday, December 18, 1961, at 10 A.M. Neither Central nor Swindell had filed a motion for change of venue in 565. The motion for consolidation of 565 and 257, made by Central, was not withdrawn and therefore remained pending after the order had been made transferring 257 to the Northern District of West Virginia.
On November 13, 1961, Henry B. Waltz, Jr., Esquire, attorney for Central, addressed a letter to the clerk of the court below regarding 257 and 565. In this letter Mr. Waltz stated that he had "recently received" a copy of an order entered by Judge Dumbauld on November 9, 1961, ordering 257 transferred to the Northern District of West Virginia as the result of a petition for transfer filed by Robert E. Wayman, Esquire, counsel for Miller. Mr. Waltz also said in his letter:
"I believe you may recall that Mr. Wayman and I appeared at the Federal Building for the purpose of presenting the motion orally and for the purpose of my orally resisting the motion. At that time I served an Answer to Mr. Wayman's petition upon Mr. Wayman and had him accept service on the original of the Answer. However, I neglected to file the original of the Answer. Consequently Judge Dumbauld apparently acted on Mr. Wayman's motion as not being opposed.
"I believe you will also recall that prior to the entry of the Order by Judge Dumbauld I filed a Motion to Consolidate Civil Action No. 61-257 and Civil Action No. 61-565.
"It was my understanding that Mr. Wayman's Petition to Transfer Civil Action No. 61-257 and my Petition to Consolidate Civil Action No. 61-257 and Civil Action 61-565 would both be argued before Judge Dumbauld in December.
"I find myself in the embarrassing position of endeavoring to consolidate an action transferred to West Virginia with one remaining to be tried in the Western District of Pennsylvania. Apparently, this situation has resulted from my failure to file the original of my Answer to the Petition to Transfer.
"I enclose herewith the original of the Answer to the Petition to Transfer and request that you file the same. I would greatly appreciate being advised as to what, if any suggestions you may have for having Mr. Wayman's motion listed for argument and the Order already entered by Judge ...