DEAN v. UNITED STATES

DEAN v. UNITED STATES. Circuit Court of Appeals, Eighth Circuit. January 9, 1929. No. 8186. C. C. Madison, of Kansas City, Mo., for appellant. Before STONE, LEWIS, and COTTER-AL, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. Appellant petitioned for and was refused a writ of habeas corpus by Judge Kenyon, from which order of denial he has appealed. The appellee presents a motion to amend the transcript of record by inserting therein a certified copy of an order in relation to a special term of court in March, 1927, of the Northern district of Oklahoma. Appellant opposes this motion on the ground that the matter sought to be added by the amendment was not before the judge in connection with the presentation of and action upon the petition involved in this appeal. Appellee contends tha,t such order “is material to the full, complete, and final adjudication. of said matter.” There is no contention by appellee that such matter was before Judge Kenyon. We think the appeal here must be heard upon the record before Judge Kenyon, and that alone; however', upon such hearing, the court may then so form its order as to “dispose of the party as law and justice require” (USCA tit. 28, § 461) so that the real situation may appear through remand for additional evidence or otherwise. We think this motion is not well taken at this time, for the above reason, and that it should be and it is denied.