Dragna

209 F.2d 26 DRAGNA, v. LANDON et al. No. 13919. United States Court of Appeals Ninth Circuit. Dec. 19, 1953. Richard H. Cantillon, Beverly Hills, Cal., Jackson & Hertogs, Joseph S. Hertogs, San Francisco, Cal., for appellant. Laughlin E. Waters, U.S. Atty., Clyde C. Downing, Asst. U.S. Atty., Robert K. Grean, Asst. U.S. Atty., Los Angeles, Cal., for appellee. Before DENMAN, Chief Judge, and HEALY and POPE, Circuit Judges. POPE, Circuit Judge. 1 The appellant brought an action for declaratory relief and for an injunction in the court below. After judgment went against him upon the merits he appealed to this court. After the record had been completed but before appellant's brief was filed, he made a motion that the cause be remanded to the district court with instructions to vacate the judgment and to dismiss the action. The motion is predicated upon the appellant's contention that although the complaint was filed by him, yet it was so wanting in equity, and so completely failed to state a claim for relief, and so lacking in necessary parties that the court below was wholly without jurisdiction. In effect, he argues that we should now notice that complete lack of jurisdiction…

The appellant brought an action for declaratory relief and for an injunction in the court below. After judgment went against him upon the merits he appealed to this court. After the record had been completed but before appellant's brief was filed, he made a motion that the cause be remanded to the district court with instructions to vacate the judgment and to dismiss the action. The motion is predicated upon the appellant’s contention that although the complaint was filed by him, yet it was so wanting in equity, and so completely failed to state a claim for relief, and so lacking in necessary parties that the court below was wholly without jurisdiction. In effect, he argues that we should now notice that complete lack of jurisdiction and hold the entire proceedings for naught.

The record discloses that plaintiff, a citizen of Italy, and lawfully admitted to the United States as a permanent resident thereof, made a temporary visit to Mexico in 1932; that in 1935 deportation proceedings were instituted against him but were dismissed and cancelled by the Immigration and Naturalization Service in 1937; that again on December 5, 1952, the defendant District Director and the defendant…

(dissenting).

I dissent from this decision because it admits that the parties stipulated to an amendment of the findings and yet compels the entertaining of the appeal without the stipulated amendment. A defect in the court’s memory does not void a stipulation. Such voiding is a denial of justice. The court owes the parties the duty to call them before it, to cure the court’s defective memory.

So far as this member of the court is concerned, his memory is that the parties stipulated that, upon the amendment, the judgment was to be affirmed, thus saving the court the labor of the consideration and determination of the appeal and the parties their costs, attorneys’ fees and effort in briefing and arguing it.