Vowinckel v. First Federal Trust Co.

Citation10 F.2d 19
Decision Date04 January 1926
Docket NumberNo. 4574.,4574.
PartiesVOWINCKEL v. FIRST FEDERAL TRUST CO. et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

A. P. Black, of San Francisco, Cal., for appellant.

George J. Hatfield, U. S. Atty., of San Francisco, Cal., Ira Lloyd Letts, Asst. Atty. Gen., and C. W. McClean and Dean Hill Stanley, Sp. Assts. to Atty. Gen., for appellee Hicks.

Before HUNT, RUDKIN, and McCAMANT, Circuit Judges.

RUDKIN, Circuit Judge.

This is an appeal from a final decree dismissing a bill in equity. It appears from the bill of complaint that the plaintiff was born in the kingdom of Prussia in 1861; that he attended various schools and colleges in that country and was there licensed to practice medicine in 1886; that he migrated from Germany to the United States in 1892, and ever since that date has been a bona fide resident of the state of California; that on the 22d day of December, 1892, he was licensed to practice medicine in that state, and ever since has practiced medicine and surgery therein; that in the year 1898 he declared his intention to become a citizen of the United States, and made application to be admitted to citizenship in January, 1915, but his application was not heard, owing to legal delays for which he was not responsible; that in September, 1915, being desirous of advancing in his profession and at the same time rendering aid to the wounded, and visiting a daughter then engaged as a Red Cross nurse in Germany, he left California and sailed from New York for Germany, with lawful authority from the United States government so to do; that upon his arrival in Germany he entered the service of the German army for the duration of the war as a Red Cross surgeon, and there remained as such Red Cross surgeon until the signing of the Armistice; that between October, 1915, and the close of the war he rendered service in France in the care of the sick and wounded, including German, French, English, and Russian soldiers, and men, women, and children, and all persons of all nationalities who were presented to him for medical treatment; that he was discharged as such Red Cross surgeon from the German army in March, 1919; that upon his discharge he was permitted to leave Germany and to take with him property inherited from his parents there, because of the fact that he had not been a resident of Germany since 1892, and, according to German law, had ceased to be a German subject in 1900; that in August, 1919, he went to Norway, and there remained until December, 1920, when he went by steamer to the kingdom of Spain; that on divers occasions between the time of his arrival in Norway and the last-mentioned date he applied for a legal and proper visa to return to the United States, but such visa was refused on the ground that he had been declared an alien enemy, whose entrance into the United States was forbidden by law; that on the 6th day of October, 1917, Thomas Miller, Custodian of Alien Enemy Property, seized certain described property belonging to him; that he has demanded a return of such property in the manner prescribed by law, but that such return has been refused; that the appellant was at no time an alien enemy of the United States, and that he has no plain, speedy, or adequate remedy at law.

In addition to the foregoing, the bill of complaint quotes at length from the convention between the United States and other countries, for the amelioration of the condition of the wounded of armies in the field, proclaimed by the President under date of August 3, 1907 (35 Stat. 1885). Of this, of course, the courts will take judicial notice. Articles 9, 12, and 13 of that convention are as follows:

"Art. 9. The personnel charged exclusively with the removal, transportation, and treatment of the sick and wounded, as well as with the administration of sanitary formations and establishments, and the chaplains attached to armies, shall be respected and protected under all circumstances. If they fall into the hands of the enemy they shall not be considered as prisoners of war.

"These provisions apply to the guards of sanitary formations, and establishments in the case provided for in section 2 of article 8."

"Art. 12. Persons described in articles 9, 10, and 11 will continue in the exercise of their functions, under the direction of the enemy, after they have fallen into his power.

"When their assistance is no longer indispensable they will be sent back to their army or country, within such period and by such route as may accord with military necessity. They will carry with them such effects, instruments, arms, and horses as are their private property.

"Art. 13. While they remain in his power, the enemy will secure to the personnel mentioned in article 9 the same pay and allowances to which persons of the same grade in his own army are entitled."

Section 2 of the Act of October 6, 1917 (40 Stat. 411 Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115½aa) defines the term "enemy" as: "Any individual, partnership, or other body of individuals, of any nationality, resident within the territory (including that occupied by...

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14 cases
  • Guessefeldt v. Grath
    • United States
    • U.S. Supreme Court
    • January 28, 1952
    ...F.2d 649; Josephberg v. Markham, 2 Cir., 152 F.2d 644; Stadtmuller v. Miller, 2 Cir., 11 F.2d 732, 45 A.L.R. 895; Vowinckel v. First Federal Trust Co., 9 Cir., 10 F.2d 19; Sarthou v. Clark, D.C., 78 F.Supp. Guessefeldt has the further obstacle of § 39 to clear before he can succeed. Congres......
  • Kaku Nagano v. McGrath
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • April 4, 1951
    ...`resident within' has been interpreted in Josephberg v. Markham, 2 Cir., 1945, 152 F.2d 644, 648-649; Vowinckel v. First Federal Trust Co., supra 9 Cir., 10 F.2d 19 at pages 20, 21; Stadtmuller v. Miller, supra 2 Cir., 11 F.2d 732 at pages 737-739, 45 A.L.R. 895, and Sarthou v. Clark, D.C.S......
  • Josephberg v. Markham, 83.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • December 10, 1945
    ...the time the vesting order took effect, is not decisive. Stadtmuller v. Miller, 2 Cir., 11 F.2d 732, 45 A.L.R. 895; Vowinckel v. First Federal Trust Co., 9 Cir., 10 F.2d 19; Miller v. Sinjen, 8 Cir., 289 F. 388. Cerutti's property in New York was in no way threatened with subjection to enem......
  • United States v. Irving Trust Co.
    • United States
    • U.S. District Court — Southern District of New York
    • April 19, 1943
    ...domicile of Sielcken in Germany within the meaning of Stadtmuller v. Miller, 2 Cir., 11 F.2d 732, 45 A.L.R. 895, and Vowinckel v. First Federal Trust Co., 9 Cir., 10 F.2d 19; and that accordingly Sielcken was an enemy alien within the meaning of the Trading With The Enemy Act. Rhodes testif......
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