Pang-Tsu Mow v. Republic of China

• Citation: 220 F.2d 811
• Decision Date: 30 November 1954
• Docket Number: No. 12391.,12391.
• Parties: PANG-TSU MOW, Appellant, v. REPUBLIC OF CHINA, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

220 F.2d 811 (1954)

PANG-TSU MOW, Appellant, v. REPUBLIC OF CHINA, Appellee.

No. 12391.

United States Court of Appeals, District of Columbia Circuit.

Order filed November 30, 1954.

Opinion of Filed February 21, 1955.

Messrs. William A. Roberts and Warren Woods, Washington, D. C., with whom appeared Mrs. Irene Kennedy and Mr. Edward G. Villalon, Washington, D. C., for appellant.

Messrs. William E. Leahy and William J. Hughes, Jr., Washington, D. C., for appellee.

Before STEPHENS, Chief Judge, and EDGERTON and FAHY, Circuit Judges, in Chambers.

Opinion of Chief Judge Stephens Filed February 21, 1955.

Order filed November 30, 1954

PER CURIAM.

This case came on for consideration on the preliminary transcript of record, on appellee's motion to docket and dismiss, and on appellant's motion for leave to file out of time a motion for extension of time within which to designate and file the record on appeal, and said motions were argued by counsel.

On consideration whereof, the Court is of the opinion that appellant's failure to file the record within time would justify dismissal of the appeal as provided for in Rule 73(a) of the Federal Rules of Civil Procedure, 28 U.S.C. However that Rule permits this Court to take such action as it deems appropriate. We deem it appropriate that the appeal from the judgment entered June 21, 1954 be dismissed, except as to one part of that judgment.

It is therefore ordered by the Court:

(1) that the appeal from the judgment entered herein June 21, 1954, be, and it is hereby, dismissed, except as it incorporates a personal judgment against Pang-Tsu Mow, appellant, as set forth in the portion of the judgment which reads as follows:

"2. That plaintiff, Republic of China, is entitled to have and recover of and from defendant, Pang-Tsu Mow, the sum of $6,368,503.47, with 6% interest thereon as provided by law, and to have execution for said sum upon any property of defendant, Pang-Tsu Mow, wherever found."

(2) that appellant's motion for leave to file a motion for an extension of time within which to designate and file the record on appeal be granted and that the Clerk be, and he is hereby, directed to file said motion forthwith;

(3) that appellant be, and he is hereby, allowed to and including December 15, 1954 within which to file his designation of the record in the District Court and that the time for filing the complete record on the appeal herein be, and it is hereby, extended to and including January 2, 1955;

(4) that the matter of taxing costs on the appeal shall await the determination of the appeal with respect to the portion of the judgment above set forth; and

(5) that the mandate of this Court with respect to the partial dismissal of the appeal as above indicated shall issue upon the expiration of fifteen (15) days herefrom.

Chief Judge Stephens is of the opinion that appellee's motion to docket and dismiss the appeal should be granted without limitation, and a statement of his views in support thereof will be filed.

Filed February 21, 1955

STEPHENS, Chief Judge, in support of his view that the motion of the appellant Mow for leave to file out of time a motion for an extension of time within which to designate and file the record on appeal should be granted, but that the motion for extension itself should be denied, and in support of his view that the motion of the appellee Republic of China to docket and dismiss the appeal should be granted without limitation, filed the following opinion:

The action out of which this appeal has arisen was commenced by the filing in the United States District Court for the District of Columbia, on November 14, 1951, by the appellee Republic of China (hereafter referred to as Republic of China) against the appellant Pang-Tsu Mow (hereafter referred to as Mow) of a complaint, the allegations of which may be summarized as follows:

Mow was director for the Republic of China of its Air Force in the United States; the Republic of China entrusted to Mow as its agent funds aggregating more than $49,000,000 to be used for three purposes: for purchase of items of equipment and supplies for the Air Force; for purchase of items incidental to the development of the aeronautical industry in the Republic of China; as a revolving fund for administrative expenses and miscellaneous authorized expenses. It was Mow's duty as agent, under the terms of his appointment, to return to the Republic of China, upon demand, any unexpended balance of the funds entrusted to him; such unexpended balance amounted to "more than $7,000,000" and this, notwithstanding demand made upon him, Mow refused to pay over.¹

An affidavit filed in the District Court on the same date as, and apparently accompanying, the complaint, by one Liang Chien Cha, Vice-Minister of Justice of the Republic of China, who had also verified the complaint, made reference to certain moneys on deposit in named banks, in the District of Columbia and elsewhere in the United States, said to be a part of the moneys allegedly entrusted to Mow by the Republic of China. The complaint itself made no mention of bank accounts and did not name banks as defendants; also the record shows no service of process upon banks.

Filed with the complaint in the District Court was a motion for a preliminary injunction to restrain Mow from disposing of any of the moneys claimed to belong to the Republic of China. On November 24, 1951, Mow filed a motion to dismiss the complaint. On December 10, 1951, the District Court entered an order denying that motion and granting the preliminary injunction. Mow filed an appeal to this Court of Appeals from that order. That appeal became No. 11,265. On January 21, 1952, Mow filed an answer to the complaint. On February 1, 1952, the Republic of China served on Mow, through his counsel, notice for the taking of his deposition. He failed to appear and thereupon, on February 11, 1952, the Republic of China filed a motion in the District Court, under Rule 37(d)² of the Federal Rules of Civil Procedure, to strike Mow's pleadings and for judgment by default for his failure to appear for deposition. On February 25, 1952, the District Court ordered Mow's pleadings struck and judgment by default rendered against him unless he should appear for deposition on or prior to March 3, 1952. Mow, through his counsel, was given notice of that order but did not appear for the deposition. On May 6, 1952, the District Court, on motion of the Republic of China invoking the Rule above referred to, struck Mow's pleadings and entered a default judgment against him because of his refusal to appear for the deposition. The District Court then referred the case to an auditor for determination of the amount due the Republic of China. From the default judgment Mow, by his counsel, appealed. That appeal became No. 11,392 and was consolidated with appeal No. 11,265. On August 7, 1952, while these two appeals were pending, Mow, who, at a date not made to appear, had gone to Mexico, was arrested there and lodged in jail on an application by the Republic of China for his extradition to Formosa. On November 20, 1952, this court disposed of the two appeals above described by affirming, in No. 11,265, that part of the order of the District Court granting the preliminary injunction but by dismissing that appeal insofar as it sought to review that part of the order denying Mow's motion to dismiss the complaint, and by dismissing No. 11,392, the appeal from the default judgment. 91 U.S.App.D.C. 324, 201 F.2d 195 (D.C.Cir.1952). These dismissals were made on the ground that the orders sought to be reviewed were not, in their then status, reviewable, in view of Rule 54(b) F.R.Civ.P. and Sections 1291 and 1292 of Title 28, U.S.Code.

On June 21, 1954, the report of the auditor to whom the case had been referred having been filed, the District Court, on the basis of that report, entered judgment that the Republic of China is entitled to have and recover from and of Mow the sum of $6,368,503.47 and to have execution for that sum upon any property of Mow wherever found. The judgment also lists moneys deposited in banks by Mow and declares such moneys the property not of Mow but of the Republic of China, and orders Mow to deliver to counsel for the Republic of China instructions addressed to the banks to pay over to the Republic of China the moneys therein deposited; it further orders the Clerk of the District Court, if Mow does not deliver such instructions, to issue a direction to the banks to pay over. The judgment further provides that such moneys as are collected from the banks shall be credited against the amount owed by Mow under the personal judgment entered against him. Notice of appeal from that judgment was filed by Mow on July 12, 1954. The present motion of the Republic of China to docket and dismiss the appeal was filed on August 26, 1954. The appeal was docketed as No. 12,391, the present appeal. Mow's motion for leave to file out of time a motion for extension of time within which to file the record was filed on August 31, 1954.

Disposition of the present motions involves certain of the Federal Rules of Civil Procedure and of the General Rules of this Court of Appeals. Rule 73(a) F.R.Civ.P. provides that a party may appeal from a judgment by filing with the District Court, within a time specified, a notice of appeal. The Rule provides also that failure of the appellant to take any of the further steps to secure a review of the judgment does not affect the validity of the appeal, but is ground only for such remedies as are specified in the Rule or, when no remedy is specified, for such action as the appellate court "deems appropriate" — which may include dismissal of the appeal. Under the Rules one of the further steps to be taken to secure review of a judgment appealed from is the filing of the record and the docketing of the appeal; and Rule 73(g) provides that the record shall be filed with the...