Opinion
No. 62.
February 20, 1935.
Charles Kalp, of Lewisburg, Pa., for petitioner.
Herman F. Reich, of Sunbury, Pa., for respondent.
This is a petition by L. Roy Crites, an inmate of the United States Northeastern Penitentiary at Lewisburg, Pa., to compel the warden thereof to change certain alleged erroneous records of the penitentiary relating to petitioner's sentence.
The respondent filed a motion to dismiss, for the reason that this court has no original jurisdiction to issue a writ of mandamus in this case, and also for the reason that the petition on its face does not show that the petitioner is entitled to the relief prayed for by mandamus.
It is well settled that the United States District Courts cannot, unless specially authorized by statute, issue an original writ of mandamus. The writ issues only as auxiliary to or in aid of jurisdiction already existing. Montgomery's Manual of Federal Jurisdiction and Procedure (3d Ed.) § 94; Hughes, Federal Practice, § 268; Foster's Federal Practice (4th Ed.) vol. 2, § 363; 28 USCA § 377, note 38; Kendall v. United States, 12 Pet. 524, 9 L. Ed. 1181; Appalachian Electric Power Co. v. Smith (C.C.A.) 67 F.2d 451; Platek v. Aderhold, Warden (C.C.A.) 73 F.2d 173.
The petitioner herein seeks an original writ of mandamus which is not in aid of jurisdiction acquired by other process, and it follows that the petition must be dismissed.
And now, February 20, 1935, upon due consideration, the petition for a writ of mandamus is dismissed.