Fong Sik Leung, as Guardian Ad Litem for Fong Gar Hong v. John Foster Dulles, as Secretary of State

226 F.2d 74 FONG SIK LEUNG, as Guardian Ad Litem for Fong Gar Hong, Appellant, v. John Foster DULLES, as Secretary of State, Appellee. No. 13610. United States Court of Appeals Ninth Circuit. July 28, 1955. Jackson & Hertogs, Joseph S. Hertogs, San Francisco, Cal., for appellant. Lloyd H. Burke, U.S. Atty., Charles Elmer Collett, Asst. U.S. Atty., San Francisco, Cal., for appellee. Before DENMAN, Chief Judge, POPE, Circuit Judge, and BOLDT, District judge. DENMAN, Chief Judge. 1 Appellant, seeking to establish under 8 U.S.C. § 903 , now 8 U.S.C.A. § 1503 , that he is an American citizen born in China to an American citizen father, Fong Sik Leung, his guardian ad litem, appeals from a judgment of the district court dismissing his petition. The court relied upon F.R.C.P. 41(b). 1 Its ground of dismissal is the refusal of the guardian ad litem, who so happened to be appellant's alleged father, to submit to a blood test ordered before the case was set for trial, for both the appellant and the guardian under the purported authority of the provisions of F.R.C.P. 35. The court's order reads: 2 'Upon motion made pursuant to Rule 35 of Federal Rules of Civil Procedure for…

Appellant, seeking to establish under 8 U.S.C. § 903 , now 8 U.S.C.A. § 1503 , that he is an American citizen born in China to an American citizen father, Fong Sik Leung, his guardian ad litem, appeals from a judgment of the district court dismissing his petition. The court relied upon F.R.C.P. 41(b). 1 Its ground of dismissal is the refusal of the guardian ad litem, who so happened to be appellant’s alleged father, to submit to a blood test ordered before the case was set for trial, for both the appellant and the guardian under the purported authority of the provisions of F.R.C.P. 35.

The court’s order reads:

The order fails to name any physician or physicians by whom the tests are to be made as required by F.R.C.P. 35(a), a matter considered infra.

The appellant submitted to the tests. The guardian personally did not report to the hospital and, on advice of counsel, refused to comply with the order.

I. A suit brought by a minor party petitioner, suing through his guardian ad litem, is not a suit with two parties petitioning.

The petition below better would have been titled by naming first the petitioner and having it read Fong Gar Hong, petitioner, by his guardian ad litem,…

(concurring in the result).

My views of this case are in accord with those expressed by Judge Boldt in his concurring opinion.

I too think that it is unwise to predicate any conclusions in this case upon the assumption that the Supreme Court would now approve the rationale of Union Pacific Ry. Co. v. Botsford, 141 U.S. 250 , 11 S.Ct. 1000 , 35 L.Ed. 734 . 1 Implicit in Judge Boldt’s opinion is the view, with which I agree, that no unfavorable inference should be drawn from the past refusals of Fong Sik Leung to submit to blood tests or to produce such evidence willingly or of his own motion. 2 He had the right to test the court’s order as he has done here. As Judge Boldt has said the question of appropriate inferences based on future happenings is not now before us.

. See Wigmore on Evidence, 3d ed., § 2220, Vol. VIII, pp. 190-191.

. Wigmore on Evidence, § 285, Vol. II, p. 162.