Schwinn v. United States, 9371.
| Decision Date | 20 June 1940 |
| Docket Number | No. 9371.,9371. |
| Citation | 112 F.2d 74 |
| Parties | SCHWINN v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John F. Sheffield and Charles E. Watkinson, both of Los Angeles, Cal., and Wilbur V. Keegan, of New York City, for appellant.
Ben Harrison, U. S. Atty., and Russell K. Lambeau, Asst. U. S. Atty., both of Los Angeles, Cal., for appellee.
Before WILBUR, MATHEWS, and STEPHENS, Circuit Judges.
Acting upon a petition filed under the provisions of Section 405 Title 8 U.S.C.A., the United States District Court cancelled the certificate of naturalization of Hermann Max Schwinn on the grounds that it had been procured fraudulently and illegally. Mr. Schwinn appeals. §128, Judicial Code, 28 U.S.C.A. § 225.
The appellant was a native of Germany, having arrived in the United States on December 26, 1924. He resided from that time to April 30, 1927, in the State of Ohio, at which time he left for the West Coast and took up residence in Los Angeles, California on September 1, 1927 and has continually resided there from that time to date.
A petition for citizenship was filed by appellant on April 13, 1932, in accordance with Title 8, § 379, U.S.C.A. This petition was subscribed by two witnesses, citizens of the United States who stated "in their affidavits that they have personally known the applicant to be a resident of the United States for a period of at least five years continuously * * * immediately preceding the date of the filing of his petition, and that they each have personal knowledge that the petitioner is a person of good moral character, and that he is in every way qualified, in their opinion, to be admitted as a citizen of the United States".
Hearing on the application was had and the appellant was admitted to citizenship on July 22, 1932.
The complaint for cancellation was filed by the Government on December 17, 1938 (Tit. 8, § 405, U.S.C.A.) and answer thereto was filed on March 4, 1939. Hearing was duly had on July 15, 1939, and the citizenship theretofore granted appellant was adjudged cancelled.
The trial judge, in this action, found as a fact and it was not disputed, that the two subscribing witnesses to the petition for citizenship had not known the appellant for the stated period of five years. Also that no other witnesses had been produced in the naturalization proceeding to prove the fact of residence within the United States and of good moral character as required by law. Neither of these findings is disputed now or was upon the cancellation proceeding below. Thus, in truth and in fact, this statutory requirement was entirely lacking in proof, although such deficiency did not appear at the naturalization hearing. That residence within the United States and the proof of such fact as prescribed in the statute, are jurisdictional requirements is not questioned.
The trial court based its judgment upon findings of both fraud and illegality. There is substantial evidence to support the judgment upon the ground of fraud, and since this ground alone was presented by the Government in its oral argument we do not herein make an expression as to the other ground. Fraud includes the mistaken statements of material facts which induce action by the other party, where the truth of such facts is within the special means of knowledge of the declarant. This principle is well stated in Bigelow, on Fraud, Vol. 1, p. 516, where he says: "What a man must know, it was in substance declared, must have regard to his particular means of knowledge and to the nature of the representation; and these must be subject to the test of the knowledge which a man, paying that attention which every one owes to his neighbor in making a representation to be acted upon, would have acquired in the particular case by the use of such means."
And it is said in Cooper v. Schlesinger, 111 U.S. 148, 4 S.Ct. 360, 361, 28 L.Ed. 382, ...
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