United States Ex Rel. Smith v. Warden of Philadelphia County Prison , 181 F.2d 847 ( 1950 )

181 F.2d 847

UNITED STATES ex rel. SMITH
v.
WARDEN OF PHILADELPHIA COUNTY PRISON et al.

No. 10141.

United States Court of Appeals Third Circuit.

Argued April 21, 1950.

Decided April 26, 1950.

Thomas D. McBride, Philadelphia, Pa., for appellant.

T. McKeen Chidsey, Attorney General of Pennsylvania (Colbert C. McClain, Assistant District Attorney, James W. Tracey, Jr., First Asst. District Attorney, Philadelphia, Pa., Randolph C. Ryder, Deputy Attorney General, on the brief), for appellees.

Before MARIS, McLAUGHLIN and KALODNER, Circuit Judges.

PER CURIAM.

1

The relator appeals from the judgment of the District Court for the Eastern District of Pennsylvania discharging a writ of habeas corpus upon the ground that the court had no jurisdiction to issue it. It appears that on the evening of September 23, 1949 counsel for the relator made a telephonic request for the issuance of the writ to one of the judges of the district court at his home. The judge held a hearing at noon on the next day and at 12:45 P.M. issued the writ. At that time the relator was not within the Eastern District of Pennsylvania, having been taken from the Philadelphia County Prison to the Western State Penitentiary at Rockview in the Middle District of Pennsylvania.

2

The respondent moved to discharge the writ and the motion was heard by the district court in banc. That court, the judge who originally issued the writ dissenting, held that it had no jurisdiction of the proceeding and discharged the writ. We are satisfied that the district court was without jurisdiction of the habeas corpus proceeding for the reasons stated in the opinion of the court in banc filed by Chief Judge Kirkpatrick, 87 F.Supp. 339, with which we are in complete accord.

3

Accordingly the judgment of the district court will be affirmed.