LAVINTHAL v. I. T. S. CO.

LAVINTHAL v. I. T. S. CO. No. 4683. Circuit Court of Appeals, Third Circuit. Jan. 13, 1932. H. C. Bierman, of New York City, for petitioner. Blythe D. Watts and Richey & Watts, all of Cleveland, Ohio, for respondent. Before BUFFINGTON, WOOLLEY, and DAYIS, Circuit Judges. [MAJORITY — BUFFINGTON, Circuit Judge.] BUFFINGTON, Circuit Judge. In this patent ease the final decree, the entry of which the petitioner says was error, was entered on March 27, 1931. From the entry thereof he took no appeal within the time provided by statute. On July 21, 1931, he presented this petition for a writ of certiorari and therein seeks to review the same alleged error that could have been reviewed on a timely appeal. In other words, he seeks, in effect, to use a writ of certiorari as an appeal. In the ease of Turner v. United States (C. C. A.) 14 F.(2d) 360, 361, the court makes it plain this cannot be done, holding: “But it may not be used under this provision as a substitute for an appeal or writ of error to correct mere errors committed in the exercise of a lawful jurisdiction. * * * In Greyerbiehl v. Hughes Elec. Co. (C. C. A.) 294 F. 802, we made use of the writ to restrain and correct a plain excess of jurisdiction.” The petition for certiorari is denied and dismissed.