
    SMIDDY v. JOHNSTON, Warden.
    Circuit Court of Appeals, Ninth Circuit.
    March 7, 1940.
    Ennis Smiddy, in pro. per.
    No other appearances entered.
    Before WILBUR, GARRECHT, and DENMAN, Circuit Judges.
   PER CURIAM.

Petitioner desires to appeal in forma pauperis from an order dated October 17, 1939, denying his petition for writ of habeas corpus. Such appeal from a judgment or decree must be taken “within three months after the entry of such judgment or decree”. 28 U.S.C.A. § 230, 43 Stats. p. 940, ch. 229, Sec. 8(c), approved February 13, 1925. Under the new Rules of Civil Procedure for the District Courts of the United States, effective September 16, 1938, 28 U.S.C.A. following section 723c, the appeal is taken by filing and serving notice of appeal in the District Court. Rule 81(a) sub. 2, makes the rules applicable to proceedings in habeas corpus and rule 73 provides for the method of taking an appeal by giving notice of appeal as therein provided.

In the absence of a showing to the contrary we assume that the judgment was immediately entered as required by rules 58 and 79(a). More than three months having elapsed since the entry of the judgment of the lower court the application for leave to appeal in forma pauperis is too late.

Application denied.  