In re De Marcos , 139 F.2d 841 ( 1943 )

PER CURIAM.

Petitioner submits an application for writ of mandamus or other relief, which the clerk is hereby authorized to file without prepayment of costs.

Petitioner alleges that he submitted a complaint to the District Court in which he claimed that he is a citizen of the State of Tennessee; that he is restrained of his liberty and confined to St. Elizabeths Hospital as a person of unsound mind; that he is not insane; that he sought to have the matter of his sanity and domicile adjudicated; and that the District Court treated the complaint as an application for writ of habeas corpus and dismissed the complaint.

Petitioner challenges the action of the District Court in treating his complaint as an application for writ of habeas corpus and seeks to have this court direct the District Court “to hear his complaint, not as an habeas corpus action but strictly as a jury trial.” In other words, petitioner seeks to have this court review the action of the trial court by this petition for mandamus instead of by appeal. This we may not do; for it is settled law that the extraordinary writ of mandamus may not be used as a substitute for appeal. Ex parte Whitney, 13 Pet. 404, 10 L.Ed. 221.

The petition is denied.

So ordered.