Opinion
No. 13460.
February 13, 1958.
Fred B. Collier, Royal Oak, Mich., for petitioners.
No appearance for respondent.
Before SIMONS, Chief Judge, and ALLEN and MILLER, Circuit Judges.
The petitioners seek in this Court a Writ of Mandamus directing the respondent, Honorable Arthur F. Lederle, United States District Judge for the Eastern District of Michigan, to set aside orders entered in an action seeking an accounting and damages from the petitioners, which was originally filed in the Circuit Court for the County of Oakland, Michigan, and later removed to the U.S. District Court. Before removal the petitioners had filed a cross-bill against the Federal Housing Administration, on whose motion the action was thereafter removed. In the District Court the cross-bill was dismissed as to the Federal Housing Administration for defect in the pleading. Rule 8(a), Rules of Civil Procedure, 28 U.S.C.
With the cross-bill against the Federal Housing Administrator eliminated from the case which, in the opinion of the District Judge, was the only pleading which gave the District Court jurisdiction, the District Judge entered an order remanding the case to the state court.
The present petition for a Writ of Mandamus asks that the respondent be directed to set aside the orders dismissing the cross-bill and remanding the action, contending principally that the petitioners should have been afforded an opportunity to amend their cross-bill before the Court ordered it dismissed.
The Court is of the opinion that the order remanding the action is not reviewable and that a Writ of Mandamus can not be used to circumvent that rule or as a substitute for an appeal. Sect. 1447(c) and (d), Title 28 U.S.Code; Kloeb v. Armour Co., 311 U.S. 199, 61 S.Ct. 213, 85 L.Ed. 124; Stein's Stores v. Taylor, 6 Cir., 216 F.2d 439; Massey-Harris-Ferguson, Ltd. v. Boyd, 6 Cir., 242 F.2d 800, certiorari denied 355 U.S. 806, 78 S.Ct. 48, 2 L.Ed.2d 50.
It Is Ordered that the application for the Writ of Mandamus be and is denied.