Kaku Nagano v. Brownell, 10965.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation212 F.2d 262
Docket NumberNo. 10965.,10965.
PartiesKAKU NAGANO v. BROWNELL, Atty. Gen.
Decision Date22 April 1954

Dallas S. Townsend, Asst. Atty. Gen., Irwin N. Cohen, Robert Tieken, U. S. Attys., Chicago, Ill., James D. Hill, Irwin A. Seibel, George B. Searls, Attys., Department of Justice, Washington, D. C., for appellant.

Edward R. Johnston, C. Lysle Smith, John Alden Powers, Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, and LINDLEY and SWAIM, Circuit Judges.

LINDLEY, Circuit Judge.

In Kaku Nagano v. McGrath, 7 Cir., 187 F.2d 759, we determined that the averments of plaintiff's complaint constituted a statement of a good cause of action and accordingly reversed the judgment of the District Court to the contrary. The Supreme Court affirmed, in McGrath v. Kaku Nagano, 342 U.S. 916, 72 S.Ct. 363, 96 L.Ed. 685, by an evenly divided court. Upon remand for trial, the District Court, upon the stipulated facts and certain additional evidence, found, essentially, that the averments of the complaint had been proved and entered judgment in favor of plaintiff. The essence of the original averments declared by us to be sufficient and of the later findings of the court at the trial after remand appears in our original opinion, and we shall not indulge in unnecessary repetition.

On appeal, the Alien Property Custodian urges that, on the undisputed facts, plaintiff was "resident within" Japan at the time the assets were seized and therefore, ineligible to recover them. He grounds his argument upon the coincidental fact that on the same day our decision was affirmed, another case of similar import, Guessefeldt v. McGrath, 342 U.S. 308, at page 312, 72 S.Ct. 338, at page 341, 96 L.Ed. 342, was decided, in the opinion in which the following sentence appears: "To hold that `resident within' enemy territory implies something more than mere physical presence and something less than domicile is consistent with the emanations of Congressional purpose manifested in the entire Act, and the relevant extrinsic light, including the decisions of lower courts on this issue, which we note without specifically approving any of them. See McGrath v. Zander, 85 U.S.App.D.C. 334, 177 F.2d 649; Josephberg v. Markham, 2 Cir., 152 F.2d 644; Stadtmuller v. Miller, 2 Cir., 11 F.2d 732, 45 A.L.R. 895; Vowinckel v. First Federal Trust Co., 9 Cir., 10 F.2d 19; Sarthou v. Clark, D.C., 78 F.Supp. 139." He argues that by this language, the court defined "residence" as something other than what we held it to be. He asserts that because of the language quoted, it follows as a matter of law, on the undisputed facts, that plaintiff was resident within Japan. Even though the cited language would seem to have been unnecessary to the decision and in fact fixed no definite limitations upon the meaning or connotation of the term "resident", his argument is that because of this comment the court must have meant to disapprove our decision in the Nagano case, despite the fact that it was affirmed, and that what we there said is no longer the law and cannot, therefore, be considered the law of this case. It seems to us an anomalous suggestion that, though our decision was affirmed, the Supreme Court, in another case the same day said something that shows that we should have been reversed and that though the court affirmed our judgment, it really meant that we should have been reversed. To us this is pure sophistry.

It is beyond question that, in a trial following a reversal and remand, if the evidence is substantially the same as the facts upon which the reviewing court based its decision, matters decided on appeal become the law of the case to be followed in all subsequent proceedings in the trial court and, on second appeal, in the appellate court, unless there is plain error of law in the original decision. In other words, though the rule that what is said on appeal becomes the law of the case is not an iron-clad rule which denies power in the court to correct its manifest error, it is one of sound policy. Litigation would be unduly prolonged if every dissatisfied litigant were permitted to renew on successive appeals questions previously considered and decided. General Motors Acceptance Corp. v. Mid-West Chevrolet Co., 10 Cir., 74 F.2d 386, 388; State of Kansas v. Occidental Life Insurance Co., 10 Cir., 95 F.2d 935, 936, certiorari denied 305 U.S. 603, 59 S.Ct. 63, 83 L.Ed. 383; Midland Valley R. Co. v. Jones, 10 Cir., 115 F.2d 508, 509; Wyant v. United States Fidelity & Guaranty Co., 4 Cir., 116 F.2d 83, 85, certiorari denied, Wyant v. Caldwell, 314 U.S. 610, 62 S.Ct. 57, 86 L.Ed. 490; United States v. Bollman, 8 Cir., 81 F.2d 1009, 1010; Supervisors v. Kennicott, 94 U.S. 498, 24 L.Ed. 260. Thus, in State of Kansas v. Occidental Life Insurance Co., 10 Cir., 95 F.2d 935 at page 936, the court said: "Matters decided on appeal become...

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23 cases
  • Chapman v. Pickett
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 25 Septiembre 1986
    ...on second appeal, in the appellate court, unless there is plain error of law in the original decision.' ") (quoting Kaku Nagano v. Brownell, 212 F.2d 262, 263 (7th Cir.1954)). The law of the case doctrine has an extremely persuasive rationale in this case as in others, and one can hardly im......
  • Wiesenfeld v. Secretary of Health, Education & Welfare
    • United States
    • U.S. District Court — District of New Jersey
    • 11 Diciembre 1973
    ...1499, 1507-1508 (1971); Note, 1972 Wisc.L.Rev. 626, 632-633; Note, 86 Harv.L.Rev. 568, 583-88 (1973). 22 Kaku Nagano v. Brownell, 212 F.2d 262, 264 (7th Cir. 1954). 23 In Reed the Supreme Court found a mandatory provision of the Idaho probate code giving preference to men over women when pe......
  • Abbamont v. Piscataway Tp. Bd. of Educ.
    • United States
    • New Jersey Superior Court — Appellate Division
    • 27 Julio 1998
    ...of the case, which is binding upon all lower courts, even though it may have no precedential weight in other cases. Kaku Nagano v. Brownell, 212 F.2d 262 (7th Cir.1954); Anderson v. Somberg, supra, 158 N.J.Super. at 391, 386 A.2d 413; In re Estate of LeDuc, 5 Mich.App. 390, 146 N.W.2d 711, ......
  • Anderson v. Somberg
    • United States
    • New Jersey Superior Court — Appellate Division
    • 10 Abril 1978
    ...of the three justices which resulted in the remand and retrial represents the law of the case on the retrial. See Kaku Nagano v. Brownell, 212 F.2d 262, 264 (7 Cir. 1954); Sculthorp v. American Motors Corp., 7 Mich.App. 410, 151 N.W.2d 905 (Ct.App.1967); In re Estate of LeDuc, 5 Mich.App. 3......
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