48 F. Supp. 625 | N.D. Cal. | 1942
Liability in this action was heretofore decided by this court
There seems to be no question under the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c,
The Supreme Court of the United States has recently handed down its opinion in Ex parte Don Ascanio Colorína.
Commencing with an intimation in a case pending at Hilary Term of 1454 in England,
This notion of invitation and safe-conduct so early suggested because of commercial necessities in order to avoid the rightless status of an alien proved extremely tenacious of life. The implication of such invitation and sovereign safe-conduct from mere presence of the alien in England was early postulated and generously confirmed by decision.
This utterance is but an echo of the doctrine of the English cases as is shown by the leading case in this country,
The right to sue in England has been accorded in the English courts
The early decisions in the United States clearly permitted aliens from enemy countries resident here to prosecute or defend actions in the courts, although there is still the savor of permitted residence about these opinions.
But it is strongly urged that, although the statute, itself, does not mention resident aliens
In the absence of a clear declaration upon the part of the Executive Department of the government that it is intended to deprive Japanese aliens residing in this country of the right to recourse to its courts in this type of litigation, this court will, in view of the history of the opinions and legislation, draw no such inference with reference to persons who are only indirect beneficiaries.
The very statute upon which reliance is placed provides for protective custody of property belonging to alien enemies situate within the United States. Access to this property by them is covered by licensing restrictions. Any funds which may finally be paid upon this judgment can be covered to prevent use against the
The court grants the motion to stay for the limited purpose only of giving notice to the appropriate authorities of the government of the United States of the impending entry of judgment herein. The court, if necessary, will direct that execution be not issued upon said judgment until appropriate steps have been taken to give to the government of the United States the full power to control any proceeds thereof.
Findings and judgment may be prepared, but will be held in abeyance until the appropriate safeguards have been taken.
Manaka v. Monterey Sardine Industries, Inc., D.C., 41 F.Supp. 531.
Rules 42(b) and 54(b).
The court is not under any difficulty such as faced the court in Speidel v. N. Barstow Co., D.C., 243 F. 621, since all parties are resident here and a complete segregation of amounts of recovery can be made.
314 U.S. 510, 62 S.Ct. 373, 86 L.Ed. 379.
50 U.S.C.A.Appendix § 7(b).
See Speidel v. N. Barstow Co., supra; Janson v. Driefontein Consolidated Mines, [1902] A.C. pp. 505-6.
See Porter v. Froudenberg [1915] 1 K.B. 857, 870, where reference is made to the statements of Ashton, J. The holding appears in Y.B. 32, Henry VI.Hil.pl. 5, as follows: “Si un alien come Lumbard, Galiman, ou tiel marchant que vient icy per licence et sauf conduit et prend icy en Longres, ou ailours, un meason pro le temps, si ascun debruse le meason, et prend ses biens, il aura action de trespass; nes s’il soit enemy le Roy, et vient eins sans licence ou sauf conduit auter est”.
Calvin’s Case (1609) 7 Co.Rep. at p. 182.
Littleton on Tenures, Sec. 198, indicated that an alien had no rights of action in the common law courts. Upon this point Holdsworth says: “We shah now see that, even when Littleton and Marowe were writing, it was a view of the law which was being repudiated by the courts, and that it is very doubtful if it was ever fully accepted as law. * * * If this is correct, it may well be that Coke was right when, in commenting on Littleton, he maintained that at common law the incapacity of the alien to bring any kind of action applied only to alien enemies, and that alien friends were only incapacitated from bringing real or mixed actions.” History of English Law, Volume Nine, pages 94, 95.
Wells v. Williams (1697) 1 Lord Raymond 282.
Camillus Letters, Nos. 18, 19.
Clarke v. Morey, 10 Johns., N.Y., 69.
Porter v. Freudenberg, supra; Prin
Volke v. Rotunda Hospital, [1914] 2 I.R. 543; Bassi v. Sullivan, 32 Ontario Law Reps. 14; Harasymczuk v. Montreal Light, Heat & Power Co., Rap.Jud. Quebec, 25 B.R. 252.
Schaffenius v. Goldburg, supra; Harasymczuk v. Montreal Light Heat & Power Co., supra.
Princess Thurn, supra.
Clarke v. Morey, supra; Otteridge v. Thompson, Fed.Cas.No.10,618, 2 Cranch C.C. 108. See Parkinson v. Wentworth, 11 Mass. 26; Seymour v. Bailey, 66 Ill. 288, 301.
State ex rel. Constanti v. Darwin, 102 Wash. 402, 173 P. 29, L.R.A.1918F, 1012; Arndt-Ober v. Metropolitan Opera Company, 102 Misc. 320, 169 N.Y.S. 304, affirmed 182 App.Div. 513, 169 N.Y.S. 944.
Uberti v. Maiatico, D.C., 44 F.Supp. 724; Anastasio v. Anastasio, D.C., 44 F.Supp. 725; Stern v. Ruzieka, D.C., 44 F.Supp. 726; Verano v. DeAngelis Coal Co., Inc., D.C., 44 F.Supp. 726. Tbe same point was raised in Societa Anonima Partecipazioni Industriali Commerciali et al. v. Luckenbach S. S. Co., 9 Cir., 127 F.2d 86, but is not directly passed upon in the opinion.
50 U.S.C.A., Appendix § 2.
50 U.S.C.A., Appendix § 7.
The proclamation relating to conduct of “natives, citizens, denizens or subjects of the Empire of Japan” of December 7, 1941, No. 2525, purports to be issued under Sections 21, 22, 23 and 24 of Title 50 United States Code Annotated.
See Kaufman v. Eisenberg, 177 Misc. 939, 32 N.Y.S.2d 450; See Brown v. J. P. Morgan & Co., Inc., 177 Misc. 763, 31 N.Y.S.2d 815.