Millslagle v. Olson

Eighth Circuit

Millslagle v. Olson

125 F.2d 546, 1942 U.S. App. LEXIS 4416

CourtCourt of Appeals for the Eighth Circuit

DecidedFebruary 9, 1942

DocketNo. 12064

StatusPublished

Cited by1 cases

This text of 125 F.2d 546 (Millslagle v. Olson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Millslagle v. Olson, 125 F.2d 546, 1942 U.S. App. LEXIS 4416 (8th Cir. 1942).

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Opinion

PER CURIAM.

This is an appeal from dismissal of a petition for habeas corpus filed by an inmate of the Nebraska penitentiary confined thereunder sentence of a State court for a violation of Nebraska criminal law.

The case has been fully presented on the merits. Until examination of the record after submission of the case, it was not discovered by this Court that no certificate of probable cause had been made, as re[547]*547quired by statute, 28 U.S.C.A. § 466. Such a certificate is a prerequisite to jurisdiction in this Court to entertain an appeal where, as here, “the detention is by virtue of process issued out of a State court”. Botwinski v. Dowd, 7 Cir., 118 F.2d 829, 830; Gebhart v. Amrine, 10 Cir., 117 F.2d 995, 996; Nally v. Scott, 8 Cir., 114 F.2d 562; Schenk v. Plummer, 9 Cir., 113 F.2d 726, 727; Comerford v. Hogsett, 1 Cir., 79 F.2d 486; Wilson v. Lanagan, 1 Cir., 79 F.2d 702; United States ex rel. Kreuter v. Baldwin, 7 Cir., 49 F.2d 262, 263; Genna v. Frazier, 5 Cir., 24 F.2d 706, 707; and, as to a similar statute, see Bilik v. Strassheim, 212 U.S. 551, 29 S.Ct. 684, 53 L.Ed. 649; and Ex parte Patrick, 212 U.S. 555, 29 S.Ct. 686, 53 L.Ed. 650.

While no appeal is here and, therefore, we cannot determine the merits, yet we have read the briefs and record and would affirm the dismissal of the petition by the trial Judge had we power to do so.

For want of jurisdiction, this appeal will be dismissed.

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PER CURIAM.

This is an appeal from dismissal of a petition for habeas corpus filed by an inmate of the Nebraska penitentiary confined thereunder sentence of a State court for a violation of Nebraska criminal law.

The case has been fully presented on the merits. Until examination of the record after submission of the case, it was not discovered by this Court that no certificate of probable cause had been made, as re[547]*547quired by statute, 28 U.S.C.A. § 466. Such a certificate is a prerequisite to jurisdiction in this Court to entertain an appeal where, as here, “the detention is by virtue of process issued out of a State court”. Botwinski v. Dowd, 7 Cir., 118 F.2d 829, 830; Gebhart v. Amrine, 10 Cir., 117 F.2d 995, 996; Nally v. Scott, 8 Cir., 114 F.2d 562; Schenk v. Plummer, 9 Cir., 113 F.2d 726, 727; Comerford v. Hogsett, 1 Cir., 79 F.2d 486; Wilson v. Lanagan, 1 Cir., 79 F.2d 702; United States ex rel. Kreuter v. Baldwin, 7 Cir., 49 F.2d 262, 263; Genna v. Frazier, 5 Cir., 24 F.2d 706, 707; and, as to a similar statute, see Bilik v. Strassheim, 212 U.S. 551, 29 S.Ct. 684, 53 L.Ed. 649; and Ex parte Patrick, 212 U.S. 555, 29 S.Ct. 686, 53 L.Ed. 650.

While no appeal is here and, therefore, we cannot determine the merits, yet we have read the briefs and record and would affirm the dismissal of the petition by the trial Judge had we power to do so.

For want of jurisdiction, this appeal will be dismissed.

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125 F.2d 546, 1942 U.S. App. LEXIS 4416, Counsel Stack Legal Research, https://law.counselstack.com/opinion/millslagle-v-olson-ca8-1942.

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