Lim Kwock Soon v. Brownell

• Decision Date: 18 April 1966
• Docket Number: Civ. A. No. 7022.
• Citation: 253 F. Supp. 963
• Parties: LIM KWOCK SOON and Lim Kwock Min, Plaintiffs, v. Herbert BROWNELL, Jr., Attorney General of the United States of America, Defendant.
• Court: U.S. District Court — Southern District of Texas

253 F. Supp. 963

LIM KWOCK SOON and Lim Kwock Min, Plaintiffs, v. Herbert BROWNELL, Jr., Attorney General of the United States of America, Defendant.

Civ. A. No. 7022.

United States District Court S. D. Texas, Houston Division.

April 18, 1966.

Sam M. Eng, Houston, Tex., for plaintiffs.

Woodrow Seals, U. S. Atty., and Frank C. Cooksey, Asst. U. S. Atty., Houston, Tex., for defendant.

INGRAHAM, District Judge.

BACKGROUND:

The case was tried before me in 1956. In my findings, reported 143 F.Supp. 388, I found the case fraudulent, rejected the evidence as incredible and denied plaintiffs relief for the reason that they had not discharged their burden of proof. On appeal, Lim Kwock Soon et al. v. Brownell, Attorney General, 5 Cir., 253 F.2d 809, the action of the district court was found to be a mistake. The judgment was reversed and the cause remanded with directions that judgment be rendered declaring that Lim Kwock Soon and Lim Kwock Min, and each of them, are nationals and citizens of the United States. Judgment was entered in obedience thereto on July 28, 1958.

The case is now before the court upon Stipulation Agreeing to Order to Vacate Judgment and to enter New Judgment Dismissing Petition, filed February 23, 1966. So that same may be fully understood, such Stipulation is here quoted in full:

"It is hereby stipulated by and between plaintiffs, Lim Kwock Soon (whose true name is Lim Pak Hing), and Lim Kwock Min (whose true name is Lim Shea Park), and the Assistant United States Attorney for the Southern District of Texas, Houston Division, attorney for the defendant, as follows:

Whereas, on the 28th day of July, 1958, in the above court and cause, a judgment was made and entered adjudging plaintiffs, Lim Kwock Soon and Lim Kwock Min, nationals and citizens of the United States, and

Whereas, a fraud was perpetrated upon the court in the manner and respects more fully set forth in sworn statement of plaintiff Lim Kwock Soon (whose true name is Lim Pak Hing), dated October 10, 1965, attached as Exhibit `A' sworn statement of plaintiff Lim Kwock Min (whose true name is Lim Shea Park) dated October 21, 1965, attached as Exhibit `B', and sworn statement of Lim Thl dated October 19, 1965, attached as Exhibit `C'; these references made a part of the stipulation as if fully set forth herein,

Now, therefore, it is stipulated between the parties that plaintiffs Lim Kwock Soon (whose true name is Lim Pak Hing), and Lim Kwock Min (whose true name is Lim Shea Park), are not nationals and citizens of the United States, and that an order be entered vacating and setting aside Findings of Fact and Conclusions of Law, and Judgment entered in accordance therewith, in this court and cause on July 28, 1958.

It is further stipulated that a judgment be entered as follows:

1. That plaintiffs Lim Kwock Soon and Lim Kwock Min are not nationals and citizens of the United States;

2. That said plaintiffs are entitled to no relief by their petition filed herein; and

3. That the petition be, and the same is, hereby dismissed with prejudice.

                Date 2/23/66 (sgd) Frank C. Cooksey          
                             Assistant United States Attorney
                             Attorney for Defendant
                Date 1/19/66 (sgd) Lim Kwock Soon          (sgd) Lim Pak Hing
                             Lim Kwock Soon (whose true name is) Lim Pak Hing
                Date 1/19/66 (sgd) Lim Kwock Min          (sgd) Lim Shea Park
                             Lim Kwock Min (whose true name is) Lim Shea Park
                Date 1/19/66 (sgd) Sam M. Eng      
                             Attorney for Plaintiffs."
                

On March 28, 1966, defendant filed Motion for Substitution of Party and for Order Vacating Judgment and entering New Judgment in accordance with Stipulation of Parties, submitted April 11, 1966. Form of agreed order was accordingly submitted.

I

I entertain serious doubt that I have any authority to set aside or alter in any way the Judgment entered July 28, 1958, on order of the Court of Appeals, except on further order of that court. Furthermore, I do not consider that there is a case pending in this court. The case was closed with the Judgment aforesaid. The file has sent to the Archives in Fort Worth, from which our clerk had to retrieve it when the Stipulation was filed. The motion is therefore denied.

II

If the case is again taken to the Court of Appeals, I would request clarification on the authority of a district judge, in a non-jury case, to find facts, judge the credibility of witnesses and perform the fact-finding functions accorded juries and other fact finders, be it they or he.

FACT FINDINGS BY TRIAL COURT:

Review of the findings of fact of a trial court is governed by Rule 52(a) of the Federal Rules of Civil Procedure, which reads in pertinent part as follows:

"* * * Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. * * *"

The Supreme Court held in United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948), as follows:

"A finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." 333 U.S. at 395, 68 S.Ct. at 542.

That Court further points out that findings dependent upon credibility are to be given "great weight" but are not conclusive.

The Fifth Circuit held in Sanders v. Leech, 158 F.2d 486 (5 CA 1946), that an appellate court may reverse, even under Rule 52, in the following cases:

"(1) where the findings are without substantial evidence to support them; (2) where the court misapprehended the effect of the evidence; and (3) if, though there is evidence which if credible would be substantial, the force and effect of the testimony considered as a whole convinces that the finding is so against the great preponderance of the credible testimony that it does not reflect or represent the truth and right of the case." 158 F.2d at 487.

Western Cottonoil Company v. Hodges, 218 F.2d 158 (5 CA 1955), follows this approach.

JURY VERDICT:

The Seventh Amendment says that "no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law." The problem, of course, is the interpretation of "according to the rules of the common law."

It is difficult to generalize as to what is necessary to sustain a jury verdict. It has been stated variously as "sufficient evidence," Travelers Insurance Co. v. Warrick, 172 F.2d 516 (5 CA 1949), "substantial evidence," Aetna Life Insurance Co. v. McAdoo, 115 F.2d 369 (8 CA 1940), a "reasonable basis," Senko v. LaCrosse Dredging Corp., 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed.2d 404 (1957). The following quotation from Lavender, Adm'r, v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 (1946), states the Supreme Court's view on the subject:

"It is no answer to say that the jury's verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury's verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court's function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable." (emphasis supplied) 327 U.S. at 653, 66 S.Ct. at 744.

Lip service is given constantly to the proposition that issues of credibility are for the jury. See, e. g. Egan Chevrolet Co. v. Bruner, 102 F.2d 373, 122 A.L.R. 987 (8 CA 1939).

FACT FINDINGS OF REFEREE IN BANKRUPTCY:

The general rule is that findings of fact made by the Referee in Bankruptcy may not be disturbed on review unless they are clearly erroneous.

In re Schoenburg, 279 F.2d 806 (5 CA 1960; certiorari denied, 364 U.S. 923, 81 S.Ct. 290, 5 L.Ed.2d 262), at page 807:

"Under Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., and Bankruptcy General Order 36, 11 U.S.C.A. following section 53, this Court is precluded from interfering with the order of a district court confirming a fact finding of a referee in bankruptcy unless error is clearly demonstrated. Langham, Langston & Burnett v. Blanchard, 5 Cir., 1957, 246 F.2d 529; Porterfield v. Gerstel, 5 Cir., 1957, 249 F.2d 634; United States v. Munro-Van Helms Co., 5 Cir., 1957, 243 F.2d 10. As regards the first appeal here discussed there has been a failure to show any error and the order appealed from must be affirmed."

In Lawrence Warehouse Company v. McKee, 301 F.2d 4 (5 CA 1962), the Court of Appeals for the Fifth Circuit held that "the finding of the Referee is buttressed by the denial of the petition to review by the District Court," following a similar decision of that court in Gunzburg v. Johannesen, Trustee, 300 F.2d 40 (5 CA 1962).

General Order 47 of the Supreme Court provides that "the judge shall accept his (the Referee's) findings of fact unless clearly erroneous." Griffin v. Kelley, Trustee, 227 F.2d 258 (5 CA 1955), puts the burden upon the appellant of showing the referee's findings, adopted by the District Judge, clearly erroneous.

INTERSTATE COMMERCE COMMISSION:

The findings of the Interstate Commerce Commission must be accepted by the courts if there is "substantial evidence" to support them. Reconstruction Finance Corp. v. Bankers Trust Co., 318 U.S. 163, 63 S.Ct. 515, 87 L.Ed. 680 (1943). Review of the Commission's decisions does not amount to a trial de novo. Edwards Motor Transit Co. v. United...