Schnackenberg, Knoch and Kiley, Circuit Judges. Kiley, Circuit Judge (concurring).
SCHNACKENBERG, Circuit Judge.
Purex Corporation, Ltd., a California corporation, and Firemen's Mutual Insurance Company, a Rhode Island corporation, plaintiffs, have appealed from a judgment of the United States District Court for the Eastern District of Illinois, entered in favor of St. Louis National Stockyards Company, a Delaware corporation, defendant, based upon a verdict of a jury.
It appears from the record that this proceeding was started by the filing of a complaint in the federal District Court for the Eastern Division of Eastern Judicial District of Missouri, on June 9, 1964, and that on July 2, 1964 defendant moved said court, pursuant to 28 U.S.C.A. § 1404(a), to transfer the action to the federal district court at East St. Louis, Illinois, for the convenience of the parties and the witnesses and in the interest of justice, which motion was supported by an affidavit; that the federal court in Missouri by its order of September 8, 1964 directed the transfer as requested. All subsequent proceedings were held in the federal court at East St. Louis, Illinois.
This action was brought to recover from defendant damages for its alleged failure to deliver goods manufactured by Purex and stored in a warehouse of defendant, which were destroyed by fire.
1. Plaintiffs now argue that they "were erroneously deprived of the valuable right to which they were entitled under the law, of choosing their own venue, and since the probability is that they were prejudiced as a result of being so deprived, a new trial should be granted, and the cause remanded to the District in which it was filed for retrial."
They add: "In view of the most unusual and probably unique transfer in this case to a Court House 2 1/2 miles distant, in the teeth of the general rule that a plaintiff's choice of forum should be given great weight, how did it happen that the transfer was made?"
Plaintiffs' attack is directed at the action of the district court in St. Louis, which ordered the transfer. However, if the court erred when it entered the transfer order, plaintiffs' remedy was a resort to the Court of Appeals for the Eighth Circuit. We have no jurisdiction to grant relief in this proceeding in respect to plaintiffs' insistence that a federal district court in the eighth circuit "on an insufficient showing [had] erroneously deprived [them] of their right to select their own venue, in derogation of, and not in vindication of, the interests of justice."
Inasmuch as the complaint of plaintiffs is actually directed against the action of the transferor court which sits in the eighth judicial circuit, and as the record fails to show that plaintiffs made, in the transferee court in Illinois, any motion to retransfer the case to St. Louis, we have no jurisdiction to act extra-territorially in order to adjudicate the question now raised by plaintiff.
As was said by the court in Preston Corporation v. Raese, 4 Cir., 335 F.2d 827 (1964), at 828:
"The rule is well established that a transfer order is not appealable. Jiffy Lubricator Co. v. Stewart-Warner Corp., 177 F.2d 360 (4th Cir. 1949), cert. denied, 338 U.S. 947, 70 S. Ct. 308, 94 L. Ed. 584 (1950). But even if such an order were appealable the appropriate appellate court would be the Fifth, not the Fourth, Circuit. The attempt here is to appeal to us from an order entered by a District Court not within our territorial jurisdiction. We know of no authority permitting us to entertain such an appeal." (Italics supplied.)
It appears to us that the Court of Appeals of the Eighth Circuit has ample jurisdiction, whether by mandamus or other remedy, if not by appeal, to adjudicate the validity of the transfer order. We do not have that jurisdiction.
2. Claiming that defendant had never abandoned paragraph 10 of its answer, reading: "Further answering, this defendant states that the fire mentioned in plaintiffs' second amended complaint was an Act of God. * * *", plaintiffs emphasize that this fire was not an act of God.
We hold that the court did not abuse its discretion in refusing to permit plaintiffs' attorney to read the ...