From Casetext: Smarter Legal Research

Columbia Boiler Co. of Pottstown v. Hutcheson

United States Court of Appeals, Fourth Circuit
May 25, 1955
222 F.2d 718 (4th Cir. 1955)

Summary

In Columbia Boiler Co. of Pottstown v. Hutcheson, 4 Cir., 222 F.2d 718, we dealt with an attempt to use a writ of prohibition to review an interlocutory order refusing to dismiss a patent infringement suit on the ground that defendant did not reside or have a regular and established place of business within the district.

Summary of this case from Clayton v. Warlick

Opinion

No. 7001.

Argued May 23, 1955.

Decided May 25, 1955.

Zachary T. Wobensmith, 2nd, Philadelphia, Pa. (Wirt P. Marks, Jr., Richmond, Va., on brief), for petitioner.

W. Brown Morton, Jr., New York City (Pennie, Edmonds, Morton, Barrows Taylor, New York City, on brief), for intervenor.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.


This is a petition for a writ of prohibition in a patent infringement suit instituted against the Columbia Boiler Co. of Pottstown, Inc., and Columbia Boiler Co., Inc. The first named of these corporations moved to quash the service of process and to dismiss the suit on the ground that it does not reside or have a regular and established place of business within the Eastern District of Virginia. The judge below denied the motions on the basis of the holding in Dalton v. Shakespeare Co., 5 Cir., 196 F.2d 469. It is admitted that the order denying the motions is not a final order and that petitioner cannot appeal from it. See Beury v. Beury, 4 Cir., 222 F.2d 464; E.I. Du Pont De Nemours Co., Inc., v. Hall, 4 Cir., 220 F.2d 514. We think it equally clear that writ of prohibition cannot be used as substitute for an appeal in such a case. Until Congress amends the statute so as to permit appeals from interlocutory orders of this character, we do not think that appellate courts should attempt to circumvent the law by the use of writs of prohibition or mandamus. In re Sylvania Electric Products, Inc., 1 Cir., 220 F.2d 423; Gulf Research Development Co. v. Leahy, 3 Cir., 193 F.2d 302, affirmed 344 U.S. 861, 73 S.Ct. 102, 97 L.Ed. 668; Gulf Research Development Co. v. Harrison, 9 Cir., 185 F.2d 457. Cf. C-O-Two Fire Equipment Co. v. Barnes, 7 Cir., 194 F.2d 410, affirmed 344 U.S. 861, 73 S.Ct. 102, 97 L.Ed. 695.

Petition denied.


Summaries of

Columbia Boiler Co. of Pottstown v. Hutcheson

United States Court of Appeals, Fourth Circuit
May 25, 1955
222 F.2d 718 (4th Cir. 1955)

In Columbia Boiler Co. of Pottstown v. Hutcheson, 4 Cir., 222 F.2d 718, we dealt with an attempt to use a writ of prohibition to review an interlocutory order refusing to dismiss a patent infringement suit on the ground that defendant did not reside or have a regular and established place of business within the district.

Summary of this case from Clayton v. Warlick
Case details for

Columbia Boiler Co. of Pottstown v. Hutcheson

Case Details

Full title:COLUMBIA BOILER CO. OF POTTSTOWN, Inc., Petitioner, v. Honorable Sterling…

Court:United States Court of Appeals, Fourth Circuit

Date published: May 25, 1955

Citations

222 F.2d 718 (4th Cir. 1955)

Citing Cases

Clayton v. Warlick

What applicants are seeking is to review by application for mandamus an interlocutory order from which…

Southern Railway Company v. Madden

It is clear that the order which we are asked to review is not a final order in the case and hence is not…