Elza J. Watson v. Frank Devlin

268 F.2d 211, 1959 U.S. App. LEXIS 3855

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 19, 1959
• Docket: 211
• Status: Published

Opinion

PER CURIAM.

Appellant’s motion to proceed in forma pauperis in the District Court was denied by the District Judge on November 6, 1958, on the ground that his complaint was frivolous and wholly without merit. Watson v. Devlin, D.C.E.D.Mich., 167 F.Supp. 638. Accordingly, no answer was filed in the District Court and the case was not heard on its merits. Nor has it been dismissed.

On April 18,1959, appellant filed notice of appeal from the order of November 6, 1958, and moved in the District Court for leave to appeal in forma pauperis. On November 21, 1958, the District Judge certified that the appeal was not taken in good faith and denied the motion. Section 1915(a), Title 28, U.S.Code.

There is real doubt that the order of November 6, 1958, is a final appealable decision within the provisions of Sec. 1291, Title 28, U.S.Code. Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 100 L.Ed. 1377; Ford Motor Co. v. Busam Motor Sales, 6 Cir., 185 F.2d 531; Higgins v. Steele, 8 Cir., 195 F.2d 366, 368-369.

If appealable, we are of the opinion that it should be sustained for the reasons given in the opinion of the District Judge. Watson v. Devlin, supra, 167 F.Supp. 638; Loum v. Underwood, 6 Cir., 262 F.2d 866.

The order of the District Court is affirmed.