
    GARRISON v. ST. SURE.
    Circuit Court of Appeals, Ninth Circuit.
    Nov. 24, 1942.
    Orville Chester Garrison, in pro. per.
    No other appearances were entered.
    Before WILBUR, MATHEWS and HANEY, Circuit Judges.
   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.  