Joseph Orby SMITH, Jr., Petitioner, v. UNITED STATES of America, Respondent, 272 F.2d 228

PER CURIAM. Beatrice Smith, Guardian ad litem for Joseph Orby Smith, Jr., filed in the court below on August 17, 1959, a notice of an appeal from orders of that court in the above entitled matter made on March 6, 1959 and July 9, 1959. The district court granted her leave to proceed on appeal in forma pauperis. Subsequently she filed applications requesting that she be supplied with transcripts of the proceedings in the district court. Thereupon all records, papers and files in said matter were by the district court ordered transmitted to this court.

Since the notice of appeal was filed within 60 days following the order of July 9, 1959, referred to in the notice of appeal, we assume that we have jurisdiction of the appeal and of such pending applications as there may be in connection therewith seeking transcripts of the proceedings below. Joseph Orby Smith is the same person in whose behalf we entered judgment on July 7, 1958, Smith v. United States, 259 F.2d 125, and in which we remanded for hearing in the court below Smith’s application for a hearing upon the question of his sanity at the time of his trial.

As the record now before us shows, the court below on March 6, 1959, after holding hearings on January 12, 1959, January 19, 1959 and February 2, 1959, found and determined that Joseph Orby Smith, Jr. was at the time suffering from schizophrenia with paranoid delusions, a mental disease; that he was incompetent to understand the proceedings being held or to present his case, and appointed Beatrice Smith of Chicago, Illinois, said Smith’s mother as guardian ad litem to prosecute the action for the petitioner.

It was ordered that the matter be removed from the calendar until the guardian noticed the petitioner’s motion for further proceedings. Prior to the hearing aforesaid, Joseph Orby Smith had been brought from the Medical Center for Federal Prisoners at Springfield, Missouri, to Los Angeles, California, for hearings aforesaid, at which time further medical examinations were made of him for the purpose of ascertaining his then mental condition.

Thereafter the said Beatrice Smith, as guardian ad litem, moved that the said Joseph Orby Smith be forthwith returned to the United States Medical Center at Springfield, Missouri, until such time as his alleged insanity has been curtailed to allow the case to be presented properly. Hearing was had upon that motion on June 29, 1959, and on July 9, 1959 the court granted that motion and ordered Smith returned to the Medical Center; and deeming the guardian ad litem’s petition to be an abandonment of his petition under § 2255, the court struck it from the files.

The order recited that if a subsequent application under § 2255 should be presented, consideration thereof should not be affected by the fact that a prior petition had been filed. It thus appears that the guardian ad litem, acting on behalf of the appellant, is attempting to appeal (

a) from the order appointing her guardian ad litem; and (b), from the order granting her petition to return the appellant to the Medical Center. Insofar as the appeal is attempted from the first order, it is not taken within time. It is obvious that no appeal can be taken by the guardian ad litem from either of these orders and the appeals are ordered dismissed. While the guardian ad litem was proceeding as above stated, appellant was also busy on his own behalf. On August 24, 1959, he presented to this court notices of appeal from orders of the district court made February 16, 1959 and July 13, 1959.

We have before us the entire file containing all of the papers filed or lodged in the district court and all papers filed or lodged in this court. No such orders as those referred to in Joseph Orby Smith’s notice of appeal presented here on August 24, 1959 are within the files or exist. The purported appeals taken by Joseph Orby Smith, Jr., are dismissed. HEALY, Circuit Judge, did not participate in this Per Curiam.