Kaku Nagano v. Brownell, No. 10965.

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: MAJOR, , and LINDLEY and SWAIM, Circuit
• Citation: 212 F.2d 262
• Parties: KAKU NAGANO v. BROWNELL, Atty. Gen.
• Docket Number: No. 10965.
• Decision Date: 22 April 1954

212 F.2d 262 (1954)

KAKU NAGANO
v.
BROWNELL, Atty. Gen.

No. 10965.

United States Court of Appeals Seventh Circuit.

April 22, 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,

212 F.2d 263

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...