In re Gilbough

HOUGH, Circuit Judge (after stating the facts as above). As at present amended, Judicial Code, § 128 (Comp. St. Supp. 1925, § 1120), gives to this court jurisdiction to review “final decisions” of the District Courts ... ,, . , m all eases save where a direct review^’ may be had in the Supreme Court under section f 8 (?TP- 12************1S ^*vi-dent that that section does not permit direct review. It is observable that section 128 gives to .j. , review of “final decisions ” evcent , s eomí f review or nnai decisions, except where a direct review of “the decision” may be had under section 238. But section 238 does not speak of decisions, but only of á “final judgment or decree.” The Probation Law gives the right of susr pending imposition or execution of Sentence only upon courts exercising “original jurisdiction of criminal actions,” and it contains [463] no provision for the review of any action of such a court in the premises. This legal situation presents several problems. If a judge’s action under the Probation Law is matter of discretion, then, unless it be abused, there is no ground for appeal or writ. But a denial, not of action, but of the power to act at all, is beyond question a decisión. Whether it is a “judgment or decree,” or a “final decision,” is not so certain, but that this question in all its ramifications can be tested by an appeal from the decision denying jurisdiction is certain. The decision of the Sixth Circuit Court of Appeals in Evans v. District Judge, 12 F.(2d) 64, proceeded upon the theory (contrary to the holding in Kriebel v. U. S., 10 F.[2d] 762) that no appeal lay from such an order, even if it were based upon a denial of power. Upon that question,, for the reasons just given, we find it unnecessary to express any opinion. If this order, which has been actually entered, is appealable, mandamus is if it is not, wb have no jurisdiction of any sort. Thus the present question is whether a mandamus should issue to the lower court to ... . „ ...... „ compel the exercise of the jurisdiction of which the court itself denies possession. Our jurisdiction in respect of mandamus is not, even mutatis mutandis, of the same nature as that exercised by the Supreme Court. All our power to issue mandamus and prohibition must be derived from Judicial Code, § 262 (Comp. St. § 1239); whereas the Supreme Court has, not only that grant of power, but the specific authority contained in Judicial Code, § 234 (Comp. St. § 1211). We have no power to use mandamus and prohibition as respectively the spur and the curb wherewith to drive and guide inferior courts in a manner well indicated by the opinion in Maryland v. Soper, 46 S. Ct. 185, 70 L. Ed. - (February 1, 1926). We have no p.ower in respect of this writ, except what may be necessary for the “exercise of [our] jurisdieti-oru” The subject has received frequent consideration in this court, and it is settled by authority that mandamus will not be awarded' if an appeal will lie. In re Gibson, 233 F. 751, 147 C. C. A. 517, Ann. Cas. 1917A, 921; Goldwyn, etc., v. Howells Co. (C. C. A.) 287 F. 100. Also it is settled that mandamus is to be used only in aid of our appellate jurisdiction, since we have no other. Muir v. Chatfield, 255 F. 24, 166 C. C. A. 352; In re St. Lawrence, etc., Co. (C. C. A.) 5 F.(2d) 65. In Nix v. James (C. C. A.) 7 F.(2d) 590, an application for mandamus was used exacfrly as it is sought to be used here. But the question of procedure was not argued, as is specifically stated in. the opening sentence of the court’s opinion. It has been urged here, and we hold, that a mandamus should not be granted, because whatever right to a review exists in the petitioner may be obtained by an appeal, Motion denied,