6 F.R.D. 450 (D.N.J. 1947), C. A. 2190, United States v. Klapprott

Docket Nº:Civil Action 2190.
Citation:6 F.R.D. 450
Opinion Judge:SMITH, District Judge.
Party Name:UNITED STATES v. KLAPPROTT.
Attorney:Edward V. Ryan, Asst. U.S. Atty., of Newark, N. J., for the United States. Laurence Semel, of Newark, N. J., for defendant.
Case Date:February 07, 1947
Court:United States District Courts, 3th Circuit, District of New Jersey
 
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Page 450

6 F.R.D. 450 (D.N.J. 1947)

UNITED STATES

v.

KLAPPROTT.

Civil Action No. 2190.

United States District Court, D. New Jersey.

February 7, 1947

Proceeding by the United States of America against August Klapprott to revoke the order admitting the defendant to citizenship and to cancel the certificate of naturalization issued thereon. On verified petition of defendant to open, vacate, and set aside default judgment.

Petition dismissed.

Page 451

Edward V. Ryan, Asst. U.S. Atty., of Newark, N. J., for the United States.

Laurence Semel, of Newark, N. J., for defendant.

SMITH, District Judge.

This is a civil proceeding instituted by the United States Attorney, pursuant to Section 338 of the Nationality Act of 1940, 54 Stat. 1158, 8 U.S.C.A. § 738, to revoke the order admitting the defendant to citizenship and to cancel the certificate of naturalization issued thereon on the grounds of fraud and illegality.

The original complaint, filed on May 12, 1942, charged that the certificate of naturalization was illegally and fraudulently procured and sought its cancellation on these grounds. The summons and complaint were personally served upon the defendant on May 14, 1942. The defendant failed to appear and defend within the time prescribed in the summons, to wit, sixty days, and a default judgment in conformity with the prayer of the complaint was entered on July 16, 1942. Thereafter no action was taken by the defendant until the present petition was filed on January 7, 1947.

The proceeding is now before the Court on the verified ‘ petition’ of the defendant to open, vacate and set aside the default judgment entered herein. The authority of the Court to grant relief at this time is challenged by the plaintiff.

It clearly appears from the affidavit of the defendant that his failure to appear and defend within the time prescribed was imputable to his own willful and inexcusable neglect. The excuses belatedly advanced in his affidavit, to wit, illness, confinement, and lack of opportunity, are not persuasive. We shall, however, consider the excuses in the light most favorable to the defendant, and, notwithstanding our firm conviction to the contrary, assume that the default was ascribable to his ‘ mistake, inadvertence, surprise, or excusable neglect.’ Even this assumption is of no avail to the defendant.

Rule 60(b) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, specifically preserves the traditional authority of the Court, on motion, to ‘ relieve a party or his legal representative from a judgment, order, or proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect.’ This rule, however, imposes a mandatory limitation on the time within which the motion shall be made. It is therein provided that the ‘ motion shall be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken .’ (Emphasis by the Court.) There is no discretionary power in the Court to extend this period of limitation. It necessarily follows that the present petition, regarded as a formal motion under the said rule, is barred.

The said rule, however, expressly excepts from its application the power of the Court ‘ to entertain an action to relieve a party from a judgment, order, or proceeding.’ This exception, liberally interpreted, preserves the historic authority of the Court to entertain either a bill of review or a bill in the nature of a bill of review in a proper case. Fraser v. Doing, 76 U.S.App.D.C. 111, 130 F.2d 617, 620; Wallace v. United States, 2 Cir., 142 F.2d 240, 244; Moore's Federal Practice, Vo. 3, Pgs. 3255-3276. These equitable remedies, as thus preserved, are still governed by the established principles of the common law.

The present ‘ petition,’ notwithstanding its form, should be regarded as a bill of review, and we shall so regard it. It is our opinion, however, that as such it is not maintainable for two reasons: first, the lack of grounds sufficient to sustain it; and second, the inexcusable delay of the defendant in pursuing the remedy. It is well established that the presence of

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