Garrison v. St. Sure

Ninth Circuit

Garrison v. St. Sure

131 F.2d 861, 1942 U.S. App. LEXIS 2972

CourtCourt of Appeals for the Ninth Circuit

DecidedNovember 24, 1942

StatusPublished

This text of 131 F.2d 861 (Garrison v. St. Sure) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Garrison v. St. Sure, 131 F.2d 861, 1942 U.S. App. LEXIS 2972 (9th Cir. 1942).

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Opinion

WILBUR, Circuit Judge.

The petitioner filed an application for leave to file a petition for writ of mandamus in forma pauperis. The application must be denied for lack of merit in the petition so sought to be filed. Fisher v. Cushman, 9 Cir., 99 F.2d 918.

The petitioner seeks to procure a writ of mandamus directed to the trial judge requiring him to make and file findings of fact in a proceeding in habeas corpus in which a judgment denying writ of habeas corpus has been made without findings. An appeal has been taken by the petitioner from that judgment. Leave to file that appeal in forma pauperis was denied. Upon that appeal this court can consider the question of whether or not there was prejudicial error in not making findings of fact. Petitioner is not permitted to proceed in the indirect manner here attempted to secure the making of findings. A writ cannot be used as an anticipatory appeal. Walker v. Chitty, 9 Cir., 112 F.2d 79.

The fact that he has been denied the opportunity to proceed in forma pauperis on his appeal makes no difference in this respect.

Application denied.

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WILBUR, Circuit Judge.

The petitioner filed an application for leave to file a petition for writ of mandamus in forma pauperis. The application must be denied for lack of merit in the petition so sought to be filed. Fisher v. Cushman, 9 Cir., 99 F.2d 918.

The petitioner seeks to procure a writ of mandamus directed to the trial judge requiring him to make and file findings of fact in a proceeding in habeas corpus in which a judgment denying writ of habeas corpus has been made without findings. An appeal has been taken by the petitioner from that judgment. Leave to file that appeal in forma pauperis was denied. Upon that appeal this court can consider the question of whether or not there was prejudicial error in not making findings of fact. Petitioner is not permitted to proceed in the indirect manner here attempted to secure the making of findings. A writ cannot be used as an anticipatory appeal. Walker v. Chitty, 9 Cir., 112 F.2d 79.

The fact that he has been denied the opportunity to proceed in forma pauperis on his appeal makes no difference in this respect.

Application denied.

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131 F.2d 861, 1942 U.S. App. LEXIS 2972, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garrison-v-st-sure-ca9-1942.

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