Zurini v. United States

• Decision Date: 20 June 1951
• Docket Number: No. 14279.,14279.
• Citation: 189 F.2d 722
• Parties: ZURINI v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

189 F.2d 722 (1951)

ZURINI v. UNITED STATES.

No. 14279.

United States Court of Appeals Eighth Circuit.

June 20, 1951.

Paul J. Garrotto and James A. Nanfito, Omaha, Neb., for appellant.

Edward J. Tangney, Asst. U. S. Atty., Omaha, Neb. (Joseph T. Votava, U. S. Atty. and John E. Deming, Asst. U. S. Atty., Omaha, Neb., on the brief), for appellee.

Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.

SANBORN, Circuit Judge.

This appeal challenges the validity of an order of the District Court denying the appellant's motion to vacate a decree entered on August 17, 1935, in a denaturalization proceeding initiated by the United States on March 11, 1935, under Section 15, Chapter 3592, 34 Stat. 601.¹ The decree cancelled the certificate of citizenship which had been granted to the appellant, a native of Italy, by the District Court of Douglas County, Nebraska, on May 27, 1926.

The ground upon which the United States based its petition for the cancellation of the appellant's certificate of citizenship was that it had been "fraudulently and illegally procured in that the respondent appellant did not at the time he applied for citizenship intend to become a permanent citizen of the United States of America, but merely desired to obtain the indicia of such citizenship in order that he might enjoy its advantages and protection and yet take up and maintain a permanent residence in a foreign country and thereafter he moved to Udine, Italy, where he now resides."

There was attached to the petition as an exhibit an affidavit of T. Monroe Fischer, Vice Consul of the United States at Trieste, Italy, certifying that the appellant had "established a permanent residence in Italy, a foreign country, on or about May 14, 1930, that is, within five years after his naturalization as a citizen of the United States." The affidavit then continues as follows:

"The above certification is based on the following facts:

"Amadio Zurini, in a sworn statement executed at this Consulate on March 19, 1934, stated that he ceased to reside in the United States on or about April 30, 1930. That he arrived in Italy on or about May 14, 1930. That since he established a residence abroad, he had made no visits to the United States. That he owned a share in his father's estate in Italy and that he had no business, property, or family in the United States.

"He also stated that on April 9, 1932, he was married to Maria Bravo, a citizen of Italy, who gave birth to a son on January 8, 1933. That he was employed prior to leaving the United States and that he lives in a house which he bought in 1925 or 1926 for about 3,000 lire.

"The last residence of Amadio Zurini in the United States was at 1115 So. 7th Street, Omaha, Nebraska. His present foreign address is Tarcento, Province of Udine, Italy.

"This certificate is executed pursuant to Section 15 of the Naturalization Act of June 29, 1906.

"Given under my hand and official seal at Trieste, Italy, this 4th day of December, 1934.

T. Monroe Fisher Vice Consul of the United States of America."

Contemporaneously with the filing of the petition, the United States Attorney for the District of Nebraska filed an affidavit for service by publication, stating that he had been informed by the Department of State, through the affidavit of T. Monroe Fischer, Vice Consul at Trieste, Italy, and "upon such information, verily believes that this respondent appellant, shortly after being granted this Certificate of Citizenship as above set forth, went to Tarcento, Province of Udine, Italy, and has since been residing there, and is now residing there, and that the respondent is now absent from the place of his last residence in the United States of America and that he has no domicile in the United States of America and has no place of residence in the United States of America and service of process cannot be had upon him in the United States of America."

An order of the District Court, filed March 11, 1935, after adequately describing the denaturalization proceeding brought by the Government against the appellant, and stating that, because of appellant's residence in a foreign country, usual process of law could not be served upon him, contained the following language:

"It is therefore ordered by the court that the said respondent, Amadio Zurini, appear before this court in Omaha, Nebraska, on or before the 14th day of June, A. D., 1935, then and there to answer or otherwise plead to the petition of the United States of America in this cause.

"It is further ordered by the court that a certified copy of this order be published in The Daily Record, a newspaper in general circulation in the City of Omaha, Nebraska, four consecutive weeks, the last publication to be at least sixty days prior to the date above mentioned for appearance by the said respondent."

The order of the court was published for four weeks, as required by the order and the statute of Nebraska relating to publication of service. The last publication was on April 13, 1935.

A certificate of T. Monroe Fischer, Vice Consul at Trieste, Italy, dated May 16, 1935, states that on May 7, 1935, he sent "by Registered mail a letter addressed to Amadio Zurini, of Tarcento, Province of Udine, Italy, containing a copy of the petition, affidavit and order for service by publication on non-resident defendant, which has been received from the Department of Justice and that the attached document signed by Amadio Zurini is a receipt of the letter and its contents showing its delivery by the Italian Postal Authorities."

On June 20, 1935, the United States Attorney signed a praecipe directing the Clerk of the District Court to enter a decree pro confesso. The praecipe was filed June 21, 1935.

The District Court, on August 17, 1935, entered the "Decree Cancelling Certificate of Naturalization," which reads in part as follows:

"This cause coming on for trial, and it appearing to the Court that due and legal service of process has been had on the respondent appellant, and that he has failed to appear or plead, his default was entered, and that an order taking the petition as confessed was entered of record in the office of the Clerk of the United States District Court for the District of Nebraska, Omaha Division, on June 21, 1935, and no proceedings have been taken by the said respondent since that order was entered, and more than thirty days having elapsed, and the Court being fully advised in the premises, it is

"Ordered, that the Decree of Naturalization of the District Court of Douglas County, Nebraska, admitting said respondent, Amadio Zurini, to be a citizen of the United States of America, which Decree was entered on May 27, 1926, be set aside, cancelled and declared null and void; and that the Certificate of Naturalization issued thereunder to the said Amadio Zurini, be also set aside, revoked and cancelled and declared null and void, and that the said...