Zegura v. United States, 9051.
| Decision Date | 25 May 1939 |
| Docket Number | No. 9051.,9051. |
| Citation | 104 F.2d 34 |
| Parties | ZEGURA v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Baldwin J. Allen, of New Orleans, La., for appellant.
Leon D. Hubert, Jr., Asst. U. S. Atty., of New Orleans, La.
Before FOSTER, HUTCHESON, and McCORD, Circuit Judges.
The proceeding out of which this appeal comes was one to reopen and readjudicate for error apparent on the record a cause in which appellant's naturalization certificate had been cancelled and he had been enjoined from claiming United States citizenship and the rights thereof.
As originally filed, the claim was in substance that the United States Attorney, though the real facts appeared in exhibits attached to his complaint, had erroneously stated the facts in his bill and that the curator ad hoc appointed by the Court to represent the appellant had not sufficiently apprized him of the material facts alleged against him and of their legal significance. By amendment, there was an added claim that new evidence had been discovered in a statement made in 1927 by the Vice Consul of the United States at Jugoslavia and now on file in the Department of Labor. On motion to dismiss the petition for lack of jurisdiction ratione materiae, for laches, and for want of merit in it, the petition was dismissed for lack of jurisdiction ratione materiae.
Here, appellant urges upon us that the District Judge, misapprehending the nature and effect of his petition, taking it to be a new and independent suit and not a continuation of the original suit, had erroneously held that because of the nonsuability of the United States, the Court was without jurisdiction to entertain the bill, and that the order of dismissal should be reversed.
The United States insists that appellant's petition, though related to the original suit, was a new and independent suit, requiring process, and, therefore, the United States could not be made to answer in it. It urges too that if mistaken in this and the petition was maintainable as a continuation of the original suit, it failed for laches and for want of merit.
In support of his view, appellant cites Bush v. United States, C.C., 13 F. 625, holding that a bill of review can be maintained against the United States. In support of its view, the United States cites Gherwal v. United States, 9 Cir., 46 F.2d 998, holding the contrary.
We think the United States has the right of it. A bill of review, though an original bill in chancery, is ancillary to the suit, the judgment in which it seeks to review, and upon the question of jurisdiction of the Circuit Court, without regard to the citizenship of the present parties, it is a continuation of the former suit. Pacific Railroad v. Missouri Pacific Ry. Co., 111 U.S. 505, 522, 4 S.Ct. 583, 28 L.Ed. 498. It still however is not a part of the cause in which the decree was rendered, but a new suit, having for its object the correction of the decree in the former suit and requiring service of process as in any other original suit. Pacific Railroad v. Missouri Pacific Ry. Co., supra; 19 American Jurisprudence, Sec. 423, Page 291; Standard Encyclopedia, Vol. 4, p. 452, Sec. VII; Gherwal v. United States, supra. Hardwick v....
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...recommends this view, our acceptance of it is precluded by well aged Fifth Circuit authority to the contrary. In Zegura v. United States, 104 F.2d 34 (5th Cir. 1939), plaintiff had brought a "bill of review" to reopen and readjudicate a prior action. The district court dismissed the "bill" ......
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