United States v. Kiriaze
| Decision Date | 25 February 1949 |
| Docket Number | No. 12534.,12534. |
| Citation | 172 F.2d 1000 |
| Parties | UNITED STATES v. KIRIAZE. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Chester L. Sumners, U. S. Atty., of Oxford, Miss., for appellant.
Aubrey H. Bell, of Greenwood, Miss., and Phil Stone, of Oxford, Miss., for appellee.
Before HUTCHESON, HOLMES, and LEE, Circuit Judges.
This appeal has to do in a rather unusual way with a denaturalization proceeding filed in the same court which granted the naturalization. The order it brings up vacated the denaturalization order, dismissed the denaturalization petition as without equity, and directed the clerk to issue and deliver to appellee a certified copy of his naturalization certificate.
These are the facts:
On January 28, 1924, appellee was admitted to citizenship in the United States District Court for the Northern District of Mississippi.
On January 25, 1940, in a denaturalization suit,1 in which service was had by publication, the court entered a judgment vacating its prior order admitting appellee to, and his certificate of, citizenship, and requiring that the certificate be surrendered to the United States.
In 1946, appellee filed in that cause his motion2 to vacate and set aside as void for want of jurisdiction the judgment of cancellation.
In opposition to the motion, appellant urged: (1) That the publication statutes of Mississippi were sufficiently complied with; (2) that, if not, the defect was not apparent of record, and the attack upon the judgment was a collateral one which could not be maintained; (3) that the motion is barred by limitation and laches; and (4) that the motion failed to show a meritorious defense to the cause of action which was the basis of the judgment.
The district court, of the opinion that the publication was not in accord with Mississippi statutes and that the judgment of cancellation was therefore void, vacated the judgment of denaturalization and gave defendant fifteen days in which to answer in the suit. Issue having been joined and testimony taken, the district judge concluded, and so ordered, that the petition for cancellation "should be and it is dismissed for failure of proof that the certificate of naturalization was obtained by fraud."
Appellant is here insisting that, under Zegura v. United States, 5 Cir., 104 F.2d 34, the motion was in effect a suit against the United States without its consent to be sued, and the judgment it appeals from was, therefore void. In the alternative, appellant seeks a reversal of the judgment on these grounds: (1) That appellee was barred by laches from bringing the proceeding; (2) that the evidence required a judgment that appellee procured his naturalization by fraud; (3) that the defendant had gained entrance into the United States illegally and by false pretenses, and upon the principle, "He who comes into equity must come with clean hands," was without right to file the motion on which he prevailed; and (4) that the undisputed evidence showed that the appellee had served in the Greek army and taken an oath of allegiance to Greece, and had, therefore, become an ex-patriate and lost his citizenship.
To the point that the court was without jurisdiction, appellee, citing United States v. Sotis, 7 Cir., 131 F.2d 783 and Jones v. Watts, 5 Cir., 142 F.2d 575, 163 A.L.R. 240, replies that this is not a new suit like Zegura's was by bill of review for relief against the judgment for error, but is a motion filed in the same cause for relief against a judgment as void.
To the contention that laches had barred his suit, appellee replies that in the state of world turmoil, especially that prevailing in unhappy Greece where appellee found himself caught at the beginning of the war, the district judge was right in rejecting the defense.
To appellant's claim that the judgment for him was erroneous appellee, citing Meyer v. United States, 5 Cir., 141 F.2d 825, Schneiderman v. United States, 320 U. S. 118, 63 S.Ct....
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