172 F.2d 1000 (5th Cir. 1949), 12534, United States v. Kiriaze

Docket Nº:12534.
Citation:172 F.2d 1000
Party Name:UNITED STATES v. KIRIAZE.
Case Date:February 25, 1949
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1000

172 F.2d 1000 (5th Cir. 1949)

UNITED STATES

v.

KIRIAZE.

No. 12534.

United States Court of Appeals, Fifth Circuit.

February 25, 1949

Page 1001

         Chester L. Sumners, U.S. Atty., of Oxford, Miss., for appellant.

         Aubrey H. Bell, of Greenwood, Miss., and Phil Stone, of Oxford, Miss., for appellee.

         Before HUTCHESON, HOLMES, and LEE, Circuit Judges.

         HUTCHESON, Circuit Judge.

         This appeal has to do in a rather unusual way with a denaturalization proceeding filed in the same court which granted the naturalization. The order it brings up vacated the denaturalization order, dismissed the denaturalization petition as without equity, and directed the clerk to issue and deliver to appellee a certified copy of his naturalization certificate.

         These are the facts:

         On January 28, 1924, appellee was admitted to citizenship in the United States District Court for the Northern District of Mississippi.

         On January 25, 1940, in a denaturalization suit, 1 in which service was had by publication, the court entered a judgment vacating its prior order admitting appellee to and his certificate of, citizenship, and requiring that the certificate be surrendered to the United States.

         In 1946, appellee filed in that cause his motion 2 to vacate and set aside as void for want of jurisdiction the judgment of cancellation.

         In opposition to the motion, appellant urged: (1) That the publication statutes of Mississippi were sufficiently complied with; (2) that, if not, the defect was not apparent of record, and the attack upon the judgment was a collateral one which could not be maintained; (3) that the motion is barred by limitation and laches; and (4) that the motion failed to show a meritorious defense to the cause of action which was the basis of the judgment.

         The district court, of the opinion that the publication was not in accord with Mississippi statutes and that the judgment of cancellation was therefore void, vacated the judgment of denaturalization and gave defendant fifteen days in which to answer in the suit. Issue having been joined and testimony taken, the district judge concluded, and so ordered, that the petition for cancellation 'should be and it is dismissed for failure of proof that the certificate of naturalization was obtained by fraud.'

         Appellant is here insisting...

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