Von Zedtwitz v. Sutherland

• Decision Date: 07 May 1928
• Docket Number: No. 4555.,4555.
• Citation: 26 F.2d 525
• Parties: VON ZEDTWITZ v. SUTHERLAND, Alien Property Custodian, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

26 F.2d 525 (1928)

VON ZEDTWITZ v. SUTHERLAND, Alien Property Custodian, et al.

No. 4555.

Court of Appeals of District of Columbia.

Submitted March 7, 1928.

Decided May 7, 1928.

J. A. Kratz, of Washington, D. C., and G. L. Shearer, of New York City, for appellant.

D. H. Stanley, of Washington, D. C., for appellees.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

MARTIN, Chief Justice.

This suit was brought by appellant as plaintiff to recover from the Alien Property Custodian certain property of which appellant was owner, and which was seized by the Custodian in the years 1918 and 1919 upon a finding that appellant was an enemy under the Trading with the Enemy Act (50 USCA Appendix). Appellant's claim is founded upon section 9 of the act, as amended March 4, 1923 (50 USCA Appendix, § 9), which provides for the return of property held by the Custodian if the owner thereof at the time of seizure was a citizen or subject of any nation or state other than Germany, or Austria, or Hungary, or Austria-Hungary, and is such citizen or subject at the time of the return of the seized property. Trading with the Enemy Act, § 9 (b) (1), 42 Stat. 1511 (50 USCA Appendix, § 9 (b) (1). It is the claim of appellant that at the times in question he was and still is a citizen of Switzerland, and accordingly within the terms of the amendment. This was denied by the Custodian. The lower court held against appellant, and dismissed his suit.

It is conceded that appellant was born on May 8, 1896, in Berlin; that both of his parents were German citizens, and that at birth he became a subject of Germany. His father died on August 18, 1896, and appellant alleges that immediately afterwards his mother took him with her to Paris, where they remained until 1902; that they then took up a permanent residence in Switzerland; that both of them were continuously and uninterruptedly absent from Germany for a period of 10 years from and after their departure for Paris; and that appellant's mother first revisited Germany in December, 1906. It is claimed by appellant that the continuous and uninterrupted absence of his mother and himself from Germany as aforesaid, for the full period of 10 years, resulted in their expatriation as German citizens according to the law of that country.

It is in evidence that in the year 1908 appellant and his mother were formally admitted to citizenship by the Republic of Switzerland, subject, nevertheless, to the proviso that appellant was not thereby relieved from performing military duty in Germany, "unless competent authorities have released him from the body politic to which he belonged up to the present time or approved his naturalization abroad." This proviso accords with article VI of the Swiss law of June 25, 1903, regarding the acquirement of citizenship in Switzerland, which reads as follows, to wit: "Article VI. Persons who, beside Swiss citizenship, possess that of a foreign state have as against such state as long as they reside therein no claim to the rights and to the protection of a Swiss citizen." No German release or approval of the Swiss naturalization is alleged in this case; but appellant contends that, because of his prior expatriation from Germany the Swiss naturalization was unqualified in effect, and that in the years 1918 and 1919, when his property was seized by the Custodian, he possessed, and that he still possesses, the full, complete, and exclusive status of a citizen of Switzerland.

We do not agree with this contention, for in our opinion appellant has failed to produce competent evidence to prove the continuous and uninterrupted absence of his mother and himself from Germany for the period of 10 years, beginning in or about August, 1896, and ending prior to December, 1906. The burden of proof rested upon appellant, and the only testimony introduced at the trial as to the alleged time of their departure from Germany was that of appellant himself, who was an infant at that time and could have no personal recollection of the event, but who stated that he testified from "family tradition and records." No record of the kind was produced at the trial, and "family tradition" in relation to such an event is mere hearsay and consequently incompetent. "In this case no question of pedigree; of birth, marriage, or death, as bearing on legitimacy, descent, or relationship; of ancient rights; of past events prior to...