Opinion
February 24, 1959.
Before ALLEN, McALLISTER and MILLER, Circuit Judges.
By order of January 28, 1959, petitioner was denied leave to file petition for writ of mandamus against the Honorable W. Wallace Kent, United States District Judge for the Western District of Michigan, because the petition was without merit and because the duty, the performance of which was sought by the writ, was the duty of the Clerk of the Court and not the duty of the District Judge. Rule 77(a), Rules of Civil Procedure, 28 U.S.C. Hullom v. Kent, District Judge, 6 Cir., 262 F.2d 862, January 28, 1959.
Petitioner has now applied to this Court for leave to proceed in forma pauperis and to file petition for writ of mandamus against the Clerk of the United States District Court for the Western District of Michigan, seeking the same relief as was sought in the prior proceeding.
For the reasons pointed out in our ruling of January 28, 1959, the petition is without merit. Phillips v. McCauley, 9 Cir., 92 F.2d 790.
The jurisdiction of the Court of Appeals is exclusively appellate. Its jurisdiction to issue a writ of mandamus under the provisions of Sec. 1651(a), Title 28 U.S. Code, is restricted to those cases in which the writ is in aid of that jurisdiction. Roche v. Evaporated Milk Association, 319 U.S. 21, 25-26, 63 S.Ct. 938, 87 L.Ed. 1185. Compare: Brown v. Beckham, Clerk, 6 Cir., 137 F.2d 644, 647, certiorari denied 320 U.S. 803, 64 S.Ct. 430, 88 L.Ed. 485.
The motions to proceed in forma pauperis and for leave to file petition for writ of mandamus are denied.