(dissenting).
It is true that in Bereslavsky v. Caffey1 the question, whether an action should be tried to a judge or to a jury, was.one of law; not, as here, of the exercise of discretion. However, although expressions to the contrary can be found, the Supreme Court has said a number of times, and in some cases has decided, that the writ of mandamus may be used to determine whether the lower court has abused its discretion.2 This is also the rule in several of the states, though these I have not thought it necessary to consider. Therefore, if the appellant had applied for mandamus, I think that we should have been obliged to consider the merits.
True, an appeal is not a petition for that writ, but, since the only difference *389is one of form, I am not willing to put the appellant out of court for his failure to call his application by its right name. I am especially moved not to do so, because the situation is one in which I think that we should welcome the opportunity to review in limine an order which, if wrong, would put the parties to needless delay and expense; for the whole trial would go for naught and have to be tried again de novo. I agree that ordinarily an appeal from interlocutory procedural orders is highly undesirable; but it does seem to me that litigation would become cheaper and swifter, -if our jurisdiction were not so narrowly confined as it is. Be that as it. may, here is an opportunity which I would embrace.
On the merits the order ought to be affirmed, for it is clear on this record that the judge did not abuse the discretion given him by Rule 39(b). I should indeed have felt better satisfied, if he had heard the witnesses orally or directed a reference, instead of deciding the issue on affidavits, as he did. However, the plaintiff did not ask him to take that course, and he was certainly within his powers in not adopting it sua sponte. Instead of dismissing the appeal, I would affirm the order.
2 Cir., 161 F.2d 499.
Ex parte Bradley, 7 Wall. 364, 877, 19 L.Ed. 214; Commonwealth of Virginia v. Rives, 100 U.S. 313, 323, 324, 25 L.Ed. 667; In re Engelhard & Sons Co., 231 U.S. 646, 651, 34 S.Ct. 258, 58 L.Ed. 416; Los Angeles Brush Mfg. Corp. v. James, 272 U.S. 701, 708, 47 S.Ct. 286, 71 L.Ed. 481; Roche v. Evaporated Milk Association, 319 U.S. 21, 32, 63 S.Ct. 938, 87 L.Ed. 1185; Ex parte Burr, per Marshall, C.J., 9 Wheat. 529, 530, 6 L.Ed. 152. See also in re Keith, 5 Cir., 128 F.2d 908, 912.