Yankwich

An application for leave to file petition for writ of mandate has been lodged with the Clerk of this Court. It sets up that a civil complaint was filed on May 7, 1956, in the United States District Court for the Southern District of California, Central Division, entitled G. D. Searle & Co., a corporation, plaintiff, v. Institutional Drug Distributors, Inc., a California corporation, et al., No. 19884-Y. There are three causes of action therein. One cause alleged infringement and the other two unfair competition. The relief sought is injunction pendente lite, and thereafter permanently, and accounting for profits and damages suffered by plain *568 tiff as a result thereof. Petitioner filed an answer, which contains a general denial and a separate defense that Searle had used the alleged trademark in violation of the anti-trust laws and alleges by reason thereof Searle was in court with unclean hands. A defense that no claim is set forth in the complaint upon which any relief can be granted is also included.

A counterclaim by Institutional against Searle is also set forth separately in the same answer. Stephen Chase, Lewis S. Hoyt and Julius K. Holbein were also named therein as…

I dissent from the Order denying leave to file petition for mandamus. This petition discloses a matter where the rarely to be used writ of mandamus would be justified. Jurisdiction being with this Court, (United States Alkali Export Ass’n v. United States, 325 U.S. 196, 204 , 65 S.Ct. 1120 , 89 L.Ed. 1554 ), I do not believe the petition should be denied.

The issue involved is petitioner’s right to a trial by jury, for which timely demand was made, on an issue of fact. It is settled that an action for damages for an Antitrust violation is one at law. Weeks v. Bareco Oil Co., 7 Cir., 125 F.2d 84 . The majority opinion would deprive the counter-claimant of his jury trial. When the issue is once tried by the court, it has become moot, and the law of the case is fixed. An appeal, or appeals, may be available to petitioner, but they might well be “a clearly inadequate remedy,” as is suggested by Judge Biggs in the first case cited below.

I would prefer to follow the path suggested, under very similar circumstances, in the case of Canister Co. v. Leahy, 3 Cir., 1951, 191 F.2d 255 , certiorari denied 342 U.S. 893 , 72 S.Ct. 201 , 96 L.Ed. 669 .

See also 28 U.S.C.A. §§ 1292 , 1651;…