Capital Service, Inc. et al. v. United States District Court for Southern Dist. of California, Central Division, et al, 198 F.2d 18 (9th Cir. 1952)

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U.S. Court of Appeals for the Ninth Circuit - 198 F.2d 18 (9th Cir. 1952) June 24, 1952

Hill, Farrer & Burrill and Hyman Smith, Los Angeles, Cal., for petitioners.

George J. Bott, General Counsel, David P. Findling, Associate General Counsel, A. Norman Somers, Asst. General Counsel, National Labor Relations Board, Washington, D. C., Charles K. Hackler, Chief Law Officer, 21st Region, Los Angeles, Cal., Norton J. Come, Atty., National Labor Relations Board, Washington, D. C., in opposition of NLRB to motion for mandamus of petitioners.

Before DENMAN, Chief Judge, and ORR and POPE, Circuit Judges.


Petitioner moves this court for a writ of mandamus to compel the respondent to convene a three-judge district court under 28 U.S.C. § 2281 for hearing Case No. 14142 HW in the United States District Court for the Southern District of California, which is a suit for injunction brought by the National Labor Relations Board against the petitioner here.

It appears that a final judgment was entered on June 2, 1952, in Case No. 14142 HW and that an appeal from that judgment, with petitioner here as appellant, is now pending in this court, 198 F.2d 20.

Since the issue concerning the use of a three-judge court may be raised in the pending appeal, the petition for writ of mandamus is denied. Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 63 S. Ct. 938, 87 L. Ed. 1185.