
    ICYCLAIR, Inc., et al. v. McCORMICK, District Judge.
    Circuit Court of Appeals, Ninth Circuit.
    Nov. 10, 1944.
    Fred H. Miller, of Los Angeles, Cal., for petitioners.
    Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges.
   PER CURIAM.

Petitioners seek leave to file a petition for a writ of mandamus to require the District Court below to set aside its judgment in favor of the plaintiff in the above cause and, the judgment being set aside, then to set aside certain findings made by the District Court below and to require the court to proceed to make substitute findings in accord with the mandate of the decision of this court in National Popsicle Corp. v. Icyclair, Inc., 119 F.2d 799, May 14, 1941. The requested petition does not show clearly that the mandate has not been complied with. If it be true that it has been disobeyed, it will be made clear only from an examination of the evidence.

The petitioners state that in the absence of such a writ of mandamus they will appeal from the judgment below. The exercise of the power to issue a writ of mandamus is discretionary with the appellate court. Here, instead of aiding an appeal, it would frustrate an appeal on the challenged act of the District Court in making its findings and would lead to a piecemeal determination of the cause on appeal.

On permitting the filing of the petition we would issue an order to show cause upon which there would be a return, probably to be traversed, succeeded by a hearing and the likely interchange of briefs. The difference in time between this and the presentation of the cause on appeal is not substantial. Amalgamated Meat Cutters, etc., v. Yankwich, 9 Cir., 115 F.2d 51.

Leave to file the petition for a writ of mandamus is denied.

MATHEWS, Circuit Judge,

concurs in the result. '  