Roberts Ex Rel., Inmates of the California State Prison for Men at Represa, Cal. v. State of California Department of Corrections

Appellant moves to rescind our order of January 27, 1949, denying his petition for an allowance of appeal. That denial was based upon a petition for the allowance of an appeal and not upon a petition to be permitted to prosecute an appeal in forma pauperis. So construing the petition, we held that we did not have power to allow an appeal, deeming the only method of taking an appeal is the filing of a notice of appeal in the district court under Federal Rule of Civil Procedure, rule 73 (a), 28 U.S.C.A.

Had the petition been one seeking to prosecute an appeal in forma pauperis, it appears that we then had no power to grant it. The order from which the appeal is sought is stated in a petition filed in this court on January 25, 1949, as follows:

Since the order sought to be appealed from was made on December 23, 1948, and the petition was filed on January 25, 1949, the thirty days for taking an appeal had expired and the appeal could not be brought before us, 28 U.S.C.A. § 2107 , providing in its first paragraph: “Except as otherwise provided in this section, no appeal shall bring any judgment, order or decree in an action, suit or proceeding of a civil nature before a court of…