and that he had made "numerous statements indicating his allegiance and loyalty to the German Reich and his disregard and disrespect for the principles and institutions of the United States of America."

Petitioner was personally served with summons on May 15, 1942. Without the introduction of any evidence, judgment by default was entered against him on July 17, 1942, when he failed to answer within the sixty days allowed by § 338, supra, note 1.

In January, 1947, four and one-half years later, Klapprott petitioned the same district court which had entered the judgment of denaturalization for an order to show cause why that judgment should not be vacated. In an affidavit appended to his petition, he stated, after admitting receipt of the summons and complaint, that it was impossible for him to enter a defense and intimated that he was unable to take steps to have the judgment vacated prior to 1947. There is no allegation that he was ignorant of the entry of the judgment for any period of time. See Rules 5 (a) and 77 (d) of the Federal Rules of Civil Procedure. The reasons contained in the affidavit in support of this general statement can be summarized as follows: Petitioner, as a result of serious illness, was in poor health and "unable to get around very well" at the time summons was served. Since he had no money with which to retain a lawyer, he drafted a letter to the American Civil Liberties Union of New York requesting legal assistance. On July 7, 1942, seven days before time for filing appearance expired, he was arrested by federal authorities on an indictment in the United States District Court for the Southern District of New York, charging him with a conspiracy to violate the Selective Service Act. The letter was taken by these authorities, and, so far as Klapprott knew, never mailed. The court appointed a lawyer to defend petitioner in the New York conspiracy case.

Petitioner informed him of the denatu

ralization proceeding, to which the lawyer promised to attend, but which he neglected, allowing judgment to be entered by default. Because of the lengthy trial and exceedingly high bail in connection with the conspiracy charge, petitioner was still unable to take steps to have the judgment vacated. He was found guilty of the conspiracy and committed to the Federal Correctional Institution at Milan, Michigan. On January 30, 1944, pursuant to another indictment-the "Sedition Case" " in the United States District Court for the District of Columbia-he was transferred to the District of Columbia. He remained in custody throughout the trial of this case until November 21, 1946, when the indictment was dismissed. Petitioner was then released but was immediately remanded to custody at Ellis Island for the purpose of deportation. From there he began this attempt to have the judgment of denaturalization vacated.

Petitioner in his affidavit denied the allegations in the government's original complaint and asserted that he had a good and legal defense to the action for cancellation of his certificate of naturalization.

If petitioner is entitled to relief from the default judgment, he must qualify under one or more of the provisions of Rule 60 (b) of the Federal Rules of Civil Procedure. I do not think that his petition or the affidavit

2 Conviction subsequently reversed in Keegan v. United States, 325 U. S. 478.

3 United States v. McWilliams, 82 U. S. App. D. C. 259, 163 F. 2d 695.

4 Rule 60 (b):

"On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59 (b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct

in support thereof meets the requirements of that Rule for vacating a judgment.

First. The Court assumes, as I think it must, that § 338 of the Nationality Act authorizes default judgments of denaturalization. So much is clear from the provisions in (b) of that section for notice by publication and in (c) for the denaturalization of one who has left the United States to establish a permanent residence elsewhere. The action authorized by the section is civil. The general rule in civil actions is that notice places on the party to whom it is directed the responsibility to appear and defend or face the consequences. Rule 55 of the Federal Rules of Civil Procedure provides for default judgments

of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Section 57 of the Judicial Code, U. S. C., Title 28, § 118, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action."

5 A subsequent section, 54 Stat. 1163, 8 U. S. C. § 746 (a) (1) and (d), specifically providing for the criminal penalties of fine and imprisonment for the utterance of a false oath such as this, indicates an intention that proceedings under § 338 are not criminal.

Cf. Knauer v. United States, 328 U. S. 654, 671; Luria v. United States, 231 U. S. 9, 27-28; Sourino v. United States, 86 F. 2d 309; United States v. Wezel, 49 F. Supp. 16, 17.

in civil actions where the party against whom relief is sought fails to plead. The instances enumerated in (b) (2) and (e) of that rule, as those where a default judgment shall not be entered, do not include this case.

The Court suggests under caption Second, however, that the presentation of evidence is a prerequisite to the entry of such a judgment, and that a default judgment entered without evidence is void and therefore subject to vacation without a definite time limit under (4) of Rule 60 (b). It points out that Schneiderman v. United States, 320 U. S. 118, held that "clear and convincing" evidence is necessary to support a judgment of denaturalization. The holding in that case, however, must be viewed in its setting, i. e., a contested case. The case does not support the proposition that any evidence, clear and convincing or otherwise, is required in an uncontested denaturalization proceeding. The general rule in civil actions is that none is necessary. Even though deportation is a most serious disaster to the deportee, it is founded here on uncontested allegations of adequate facts that must be taken as true. Although the committee which formulated the Federal Rules of Civil Procedure twice made a hearing on evidence a requirement for the entry of a default judgment, Rule 55 (b) (2) and (e), no such requirement was expressed for cases of this sort. Except for cases of the sort specified in (b) (2) and (e), and those where the amount of damages is in question, I think the meaning of the Rule is that a default is the equivalent of an admission of allegations which are well pleaded.

The Court seeks support in the fact that other sections of the Nationality Act, 8 U. S. C. §§ 738 (e) and 746, provide for denaturalization when the alien has been convicted of the crime of procuring his certificate of naturalization by knowingly false statements under oath. The protections which safeguard the alien in such a

criminal prosecution are sought to be extended to him in civil proceedings under § 738. To me the very existence in the Act of two parallel methods of denaturalization indicate that the protections inherent in the criminal proceeding are not intended to apply to the civil proceeding such as we have here.

Since no expression of Congress can be found, either in the Federal Rules or in the Nationality Act, to the effect that evidence is necessary to validate a civil default judgment of denaturalization, I do not think it is the function of this Court to supply one.

The suggestion of the Court in caption Fifth that the government's complaint does not state a cause of action, seems unwarranted. Certainly the government is not required to plead all its evidence. Since the complaint alleged fraud and specified in paragraph 6 thereof the circumstances constituting fraud, set out in the first paragraph of this dissent, I think Knauer v. United States, 328 U. S. 654, belies the suggestion that the complaint is defective.

Thus I dissent from the suggestion that the judgment against Klapprott can be vacated as void under Rule 60 (b) (4).

Second. The Court holds that petitioner is entitled to relief under (6), the "other reason" clause of Rule 60 (b). This follows, it is said, from his allegations that he was held in custody and subjected to several criminal prosecutions by the United States. As I see it, such allegations add nothing to the single ground on which relief could have been based, i. e., "mistake, inadvertence, surprise, or excusable neglect." Rule 60 (b) (1). I do not mean to say that an arrest and a subsequent period of imprisonment which interfered to the extent of depriving him of the opportunity to get legal assistance or the ability to litigate would not entitle him to relief. In view of the facts set out in petitioner's own affidavit,