
    In re DE MARCOS.
    Misc. No. 35.
    United States Court of Appeals. District of Columbia.
    Nov. 3, 1943.
    On Rehearing Nov. 30, 1943.
    On Petition to Reconsider Jan. 7, 1944.
    Mr. J. Ralph De Marcos, pro se.
    Before: GROWER, C. J., and MILLER and ARNOLD, JJ.
   PER CURIAM.

Petitioner submits an application for writ of mandamus or other relief, which the clerk is hereby authorized to file without prepayment of costs.

Petitioner alleges that he submitted a complaint to the District Court in which he claimed that he is a citizen of the State of Tennessee; that he is restrained of his liberty and confined to St. Elizabeths Hospital as a person of unsound mind; that he is not insane; that he sought to have the matter of his sanity and domicile adjudicated; and that the District Court treated the complaint as an application for writ of habeas corpus and dismissed the complaint.

Petitioner challenges the action of the District Court in treating his complaint as an application for writ of habeas corpus and seeks to have this court direct the District Court “to hear his complaint, not as an habeas corpus action but strictly as a jury trial.” In other words, petitioner seeks to have this court review the action of the trial court by this petition for mandamus instead of by appeal. This we may not do; for it is settled law that the extraordinary writ of mandamus may not be used as a substitute for appeal. Ex parte Whitney, 13 Pet. 404, 10 L.Ed. 221.

The petition is denied.

So ordered.

On Rehearing.

On consideration of petitioner’s motion filed herein November 6, 1943, for reconsideration and for leave to amend his petition for mandamus in the above-entitled matter so as to make the petition an appeal from the judgment of the District Court, it is

Ordered by the court that the application to amend be, and it is hereby, denied for the reason that the manner of taking an appeal is fixed by Rule 73(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, which provides that an appeal may be taken “by filing with the district court a notice of appeal”; and

It is further ordered by the court that the motion for reconsideration be, and it is hereby, denied.

On Petition to reconsider Petition for leave to amend Petition for Mandamus and to make the petition an appeal from the judgment of the District Court.

PER CURIAM.

In a petition filed in this court, petitioner De Marcos represented that he had filed a notice of appeal in the District Court from an order of that court dismissing a petition which that court treated as a petition for writ of habeas corpus, and further represented that he was a poor person and had no means whereby to obtain a copy of the record; and sought to have this court review the action of the District Court. In order that we might examine the record to determine if there was any ground of appeal, we directed the clerk of the District Court to certify and transmit the original record, which has been done. An examination of the record discloses no proper ground for appeal, and the judge of the District Court having certified that the appeal was not taken in good faith, and petitioner himself having disclaimed any desire to seek a writ of habeas corpus, but rather to have this court determine that he is entitled to a jury trial on the question of his legal residence, and it appearing from the records in this court that that question was decided adversely to petitioner’s contentions in De Marcos v. Overholser, 74 App.D.C. 42, 122 F.2d 16, we are of opinion that we are now without jurisdiction or power to take any action in respect to that matter. The petition must therefore be dismissed, and the clerk is ordered to return the original record to the District Court.

Petition dismissed.  