Tree Top v. Smith

577 F.2d 519 Application of Thelma TREE TOP, natural mother and next friend, on behalf of Rena Rae Winters, for a writ of habeas corpus, Petitioner-Appellant, v. Sherman B. SMITH and Juanita D. Smith, husband and wife, Respondents-Appellees. No. 76-1476. United States Court of Appeals, Ninth Circuit. June 21, 1978. Bertram E. Hirsch, New York City, William P. Lamb, Mendocino, Cal., for Thelma Tree Top. Clyde G. Nelson, Soda Springs, Idaho, for respondents-appellees. Appeal from the United States District Court for the District of Idaho. Before TUTTLE, * DUNIWAY and WRIGHT, Circuit Judges. EUGENE A. WRIGHT, Circuit Judge: 1 Thelma Tree Top appeals from a district court order denying and dismissing her petition for a writ of habeas corpus. The district court having issued a certificate of probable cause, we have jurisdiction under 28 U.S.C. § 2253 . Although the appellant filed a notice of appeal before entry of a proper final judgment, in this case we deem the notice of appeal to relate to the later judgment. See Firchau v. Diamond National Corp., 345 F.2d 269, 271 (9th Cir. 1965); Curtis Gallery & Library, Inc. v. United States, 388 F.2d 358, 360 (9th Cir. 1967). 2 Tree…