United States v. Leo Fisher

258 F.2d 362, 1 Fed. R. Serv. 2d 155, 1958 U.S. App. LEXIS 4628

Opinions

FINNEGAN, Circuit Judge.

On April 29, 1954 the government filed a petition in the district court under § 338(a), Nationality Act of 1940 [54 Stat. 1158, 8 U.S.C. § 738(a)] as continued in force and effect by § 405(a), Immigration and Nationality Act of 1952 [66 Stat. 280, 8 U.S.C.A. § 1101 note] and § 340(a), Immigration and Nationality Act of 1952 [66 Stat. 163, 8 U.S.C.A. § 1451(a)] against Leo Fisher, appellant-respondent. By way of amendment to that petition, the government on May 3, 1954 supplied the statutory affidavit of Reuben Speiser. Respondent challenged the timeliness in filing that affidavit, required under § 340 of the 1952 Act, at several stages of the proceedings below including the motion for judgment notwithstanding the verdict or for a new trial.

The judgment appealed is reversed and remanded with directions to dismiss the complaint on the authority of the per curiam decision reported as Matles v. United States, 1958, 356 U.S. 256, 78 S.Ct. 712, 2 L.Ed.2d 741 stating inter alia: “An affidavit showing good cause is a prerequisite to the initiation of denaturalization proceedings. The affidavit must be filed with the complaint when the proceedings are instituted.” We think amending in reliance on Rule 15(a), Federal Rules of Civil Procedure, 28 U.S.C. concedes ¹ omission of the indispensable affidavit at the time of initial filing.

Judgment reversed.

1 . In its brief at page 15, the government states regarding timeliness of the affidavit: “ * * * (rr)be petition recites that the affidavit is ‘herewith’ presented, and although the government supplied the omitted affidavit by amendment before the petition was served and within four days after it wag filed.” (Italics supplied.)