February 27, 1958
UNITED STATES OF AMERICA, ON PETITION OF PACIFIC EMPLOYERS INSURANCE CO., PLAINTIFF,
THE HONORABLE ROBERT E. TEHAN, DISTRICT JUDGE OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN, DEFENDANT.
Before FINNEGAN, SCHNACKENBERG and PARKINSON, Circuit Judges.
PARKINSON, Circuit Judge.
The petitioner, defendant in an action pending in the District Court for the Eastern District of Wisconsin, seeks a writ of prohibition against the respondent, the District Judge, from further proceedings other than to dismiss the amended complaint for want of jurisdiction.
The respondent has filed a response wherein he asserts that he "stands ready to hold a hearing within ten days after all briefs are filed" and that petitioner's allegation "that it had no adequate remedy at law is utterly without support in fact."
A defense of lack of jurisdiction should be heard and determined before trial on application of any party but the court may order the hearing and determination deferred until the trial. Rule 12(d) Federal Rules of Civil Procedure, 28 U.S.C.A.
The petition here shows upon its face that the District Court has not decided the question of its jurisdiction. A writ of prohibition founded upon absence of jurisdiction should not issue where the question is before the District Court and has not been decided. Talbot v. McCarrey, 9 Cir., 1955, 218 F.2d 565, 567.
Mandamus and prohibition against judges are drastic and extraordinary remedies. Ordinarily their use will not be permitted as substitutes for an appeal. Ex parte Fahey, 1947, 332 U.S. 258, 67 S. Ct. 1558, 91 L. Ed. 2041.
The showing made here by the petitioner is inadequate to warrant the issuance of the writ.
The petition is denied.
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