Opinion
Nos. 12298, 12299.
April 13, 1948.
On Petitions for Writs of Prohibition.
Original proceedings on the petitions of Jesse A. Kilpatrick and by L.M. Parker for writs of prohibition to restrain respondent district judge from proceeding to trial in certain causes notwithstanding petitioners' appeals from orders denying their motions to dismiss, 72 F. Supp. 632.
Petitions denied.
W.P. McLean, of Fort Worth, Tex., and William H. DeParcq, of Minneapolis, Minn., for petitioners.
W.B. Harrell, of Dallas, Tex., and Samuels, Brown, Herman Scott, of Fort Worth, Tex., for respondent.
Before HUTCHESON, HOLMES, and WALLER, Circuit Judges.
Petitioners, plaintiffs in separate suits in the court below, moved there for a dismissal without prejudice of their suits. Their motions denied, each filed notice of appeal. Alleging that respondent notwithstanding their appeals has set the causes for trial and, unless prohibited from doing so, would proceed to trial in them, each has filed a petition for writ of prohibition.
This court may issue writs of prohibition only in aid of its jurisdiction to review final decisions of the district courts. It appears from the motion papers and the answers thereto that petitioners' attempted appeals from orders denying dismissal are not from final judgments. It is quite plain that this court is without jurisdiction to consider the merits of the questions sought to be raised in the applications for the writs and that for want of jurisdiction the petitions must be denied.
28 U.S.C.A. § 225; Smith v. Whitney, 116 U.S. 167, 6 S.Ct. 570, 29 L.Ed. 601; In re The Petition of United States, 263 U.S. 389, 44 S.Ct. 130, 68 L.Ed. 351; Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185.
Grand Trunk Western R. Co. v. McHie, 6 Cir., 100 F.2d 86; Atlantic Coast Line R. Co. v. Winn, 5 Cir., 227 F. 50; Heike v. United States, 217 U.S. 423, 30 S.Ct. 539, 54 L.Ed. 821.