Marion v. Foley

164 F.2d 490, 1947 U.S. App. LEXIS 1937

Opinion

PER CURIAM.

Petitioner has had dismissed his appeal in Marion v. United States, 164 F.2d 158, decided by this court on November 3, 1947. The dismissal was on the ground that the appeal was not from a final order, the claimed errors being in action of the district court incident to the determination of a. pending motion for a new trial. Petitioner now seeks a writ of mandamus requiring the district court to grant him the relief sought in his dismissed appeal.

The orders of the district court adverse to petitioner were within the exercise of that court’s judicial power in the consideration of the motion for the new trial. If there be error, it is subject to review on an appeal from the final disposition of the litigation. In this situation we have no power to issue the writ of mandamus. Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 63 S. Ct. 938, 87 L.Ed. 1185.

The petition is denied.