241 F2d 707 Great Northern Railway Company v. T Hyde C

241 F.2d 707

GREAT NORTHERN RAILWAY COMPANY, a corporation, Relator-Petitioner,
v.
Edward T. HYDE, Plaintiff-Respondent, Honorable Robert C.
Bell, Judge of the United States District Court District of
Minnesota, and The Other Judges and Officers of the United
States District Court, District of Minnesota, Respondents.

No. 15630.

United States Court of Appeals Eighth Circuit.

March 7, 1957.

Don E. Engle, St. Paul, Minn. (Edwin C. Mathias and Anthony Kane, St. Paul, Minn., were with him on the brief), for relator-petitioner.

Harry H. Peterson, Minneapolis, Minn. (Eugene A. Rerat, Minneapolis, Minn., was with him on the brief), for plaintiff-respondent and respondents.

Before SANBORN, WOODROUGH and WHITTAKER, Circuit Judges.

PER CURIAM.

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1

The opinion of this Court was filed December 18, 1956, 238 F.2d 852, holding that § 1651(a) of Title 28 U.S.C.A. was not available as a means for reviewing and reversing, for an erroneous exercise of discretion, an order transferring this action, under 28 U.S.C.A. § 14 04(a), from the District of Minnesota to the Northern District of California for trial. On January 14, 1957, the Supreme Court decided in the case of La Buy v. Howes Leather Co., Inc., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290, that a nonappealable interlocutory order of a District Judge entered under Rule 53(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., referring an antitrust case to a special master for trial, was reviewable and reversible for an abuse of discretion, because of 28 U.S.C.A. § 1651(a).

2

The relator-petitioner has petitioned this Court for a rehearing, because implications which can be drawn from the La Buy decision have cast doubts upon the correctness and propriety of our disposition of the instant case. The petition for rehearing is granted.

3

The case will be set down for reargument at the May, 1957, session of the Court. The relator-petitioner may have until March 25 to file and serve its brief on reargument. The respondents may have until April 20 to file and serve an answering brief. Ten days thereafter will be allowed the relator-petitioner for a reply brief.