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JUNG KWOK HIN V. BURNETT, Immigration Inspector.

(Circuit Court of Appeals, Ninth Circuit. February 3, 1919.)

No. 3133.

ALIENS 32(8)—CHINESE EXCLUSION—EVIDENCE TO SUSTAIN ORDER OF DEPORTATION.

Evidence held to sustain findings by the immigration inspector and the District Court that defendant was a Chinese alien laborer, and that he had failed to sustain the burden imposed on him by Act Feb. 5, 1917, $ 19 (Comp. St. 1918, • g 428944jj), of proving his right to remain in this country. Appeal from the District Court of the United States for the District of Arizona; William H. Sawtelle, Judge.

Application by Jung Kwok Hin for writ of habeas corpus to Alfred E. Burnett, Inspector in Charge of Immigration Office at Tucson, Ariz. From a judgment denying the writ, petitioner appeals. Affirmed.

F. C. Struckmeyer and Joseph S. Jenckes, both of Phoenix, Ariz., for appellant.

Thomas A. Flynn, U. S. Atty., and Clifford R. McFali, Asst. U. S. Atty., both of Phænix, Ariz., for appellee.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

ROSS, Circuit Judge. The case is fairly stated by counsel for the appellant. The latter was arrested by the appellee pursuant to a departmental warrant issued under section 19 of the Act of Congress of February 5, 1917 (39 Stat. 874, c. 29 (Comp. St. 1918, § 428914jj]) as a Chinese alien unlawfully in this country. Proceedings were had before the appellee, resulting in an order of deportation being made by the Secretary of Labor, directing the appellant to be deported whence he camė. A petition for a writ of habeas corpus was filed by him in the court below, upon which a rule to show cause was issued and a return thereto made, upon consideration of which the court ordered the rule discharged and the appellant remanded to the custody of the appellee. It is to reverse that judgment that the present appeal was taken.

It is conceded that the appellant is a Chinese laborer, and had not the certificate of residence required by section 6 of the Chinese Exclusion Act of May 5, 1892 (27 Stat. 25, c. 60) as amended by the Act of November 3, 1893 (28 Stat. 7, c. 14 [Comp. St. § 4320]). It is further conceded that by section 19 of the Act of Congress of February 5, 1917, the burden rested upon the appellant to show his right to remain in the United States.

An attentive examination of the record shows, we think, that we would not be justified in interfering with the findings made upon the evidence by the inspector, to the effect that the appellant is a person of Chinese descent and a laborer by occupation; that under the name Ong Hoy Suie he made application at San Francisco, Cal., December 5, 1912, for preinvestigation of his status, claiming that he was born at 210 I street, Sacramento, of a father who died in China in 1894, and For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

of a mother who subsequently died in Sacramento; that in support of that application he offered testimony of witnesses who were discredited, and that the application was accordingly denied by the Commissioner of Immigration at San Francisco April 25, 1913; that on May 7, 1914, the appellant under the name Jung Kwok Hin—the name under which he appears in the present record—made application to the Commissioner of Immigration for preinvestigation of his status, filing that application with the Chinese inspector at Sacramento, and there claimed that he was born at 440 Dupont street, San Francisco, of a father who died in the Alameda county, Cal.,. infirmary October 7, 1912, and of a mother who died at Sacramento September 21, 1913; that the government officer at Sacramento recommended that the application be denied, on the ground of certain perjured testimony given Ly the applicant's supporting witnesses; that nevertheless the application was subsequently approved, and the applicant departed for China from the port of San Francisco September 19, 1914, and returned from China to San Francisco November 8, 1915, and was permitted to land November 10, 1915; that subsequently he proceeded to Mesa, Ariz., and resumed his employment in a restaurant at that place, where he formerly worked under the name Ong Hoy Suie.

Upon those facts, both the appellee and the Secretary of Labor determined that the appellant had not sustained the burden cast upon him by the law, which conclusion we are unable to hold erroneous.

The judgment is affirmed.

VENNER v. GRAVES.

(Circuit Court of Appeals, Second Circuit. December 11, 1919.)

No. 124,

COURTS 35112-JURISDICTION—ANCILLARY SUIT-EFFECT OF DISMISSAL OF

ORIGINAL SUIT.

A bill by defendant in an action in a federal court, with service on attorneys for plaintiff, who is a nonresident, to enjoin plaintiff from maintaining actions in other jurisdictions on the same cause of action, is

ancillary, and falls with dismissal by plaintiff of the original action. Appeal from the District Court of the United States for the Southern District of New York.

Suit in equity by Clarence H. Venner against Edward B. Graves. From an order denying a preliminary injunction, complainant appeals. Affirmed.

E. N. Zoline, of New York City, for appellant.
Simpson, Thacher & Bartlett, of New York City, for appellee.
Before WARD, ROGERS, and MANTON, Circuit Judges.

WARD, Circuit Judge. August 21, 1918, Graves began an action at law in the United States District Court for the Southern District

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

of New York against Venner, the summons being placed in the hands of the marshal, but not served. September 16, the defendant Venner voluntarily entered his appearance in the case.

August 23, Graves began another action in the superior court of New Haven county, Conn., by attaching 200 shares of stock of the New York, New Haven & Hartford Railroad Company standing in Venner's name.

September 17, Graves began another action in the Supreme Court of the state of New York, the summons being served on Venner that day.

September 16, Venner filed this bill, subsequently amended by leave of the court so as to include among other things an allegation of the bringing of the action in the state court of New York. The subpena was served upon the attorneys for Graves in the action at law in the Southern district of New York; he being a nonresident and not within the jurisdiction of the court.

The complainant alleges that the three suits are all to recover for the same cause of action, viz. professional services rendered by Graves to Venner, and the prayer for relief is that Graves be restrained from the further prosecution of the actions begun subsequent to the first action in the District Court for the Southern District of New York,

This is an appeal from the order of Judge Hough denying Venner's motion for a preliminary injunction.

Counsel for Venner very frankly concedes, though it does not appear in the record, that after appeal taken Graves discontinued the action at law in the District Court; but he contends the discontinuance of the action does not affect in any way the jurisdiction of the court over the suit in equity. He relies upon decisions under the statutes regulating suits which depend upon the citizenship of the parties, holding that jurisdiction good because the citizenship when the action was begun cannot be affected by any subsequent change of citizenship. This in no way affects the right of a plaintiff to discontinue an action after it has been brought, which the plaintiff in this case has done. The bill in equity, being ancillary to and dependent upon the action at law, does not survive, but falls with it. Such a result is particularly appropriate in the present case; the theory of the bill being that, though the plaintiff has a right to choose the forum into which he will bring the defendant, he ought not subsequently to bring him into other courts for the same cause of action. What rason is there to ask for this restraint, when the first action has been discontinued? If Graves prefers the court of Connecticut or of New York, this court has no original jurisdiction to prevent him from suing there. Other interesting questions discussed by counsel need not be considered.

The judgment is affirmed.

EWERT V. JONES.

(Circuit Court of Appeals, Eighth Circuit. January 27, 1919.)

No. 5136.

TRUSTS OW44(3)—ESTABLISHMENT—EVIDENCE.

Before a written lease or deed showing absolute title can be decreed to be a title in trust, parol evidence thereof must be clear, satisfactory, and convincing.

Appeal from the District Court of the United States for the Eastern District of Oklahoma; Joseph W. Woodrough, Judge.

Suit by Paul A. Ewert against A. L. Jones. From a decree for defendant, complainant appeals. Affirmed.

See 236 Fed. 712, 150 C. C. A. 44. George J. Grayston and Paul A. Ewert, both of Joplin, Mo. (A. W. Thurman, of Joplin, Mo., on the brief), for appellant.

Hiram W. Currey, of Joplin, Mo. (Arthur S. Thompson, of Miami, Okl., on the brief), for appellee.

Before HOOK and STONE, Circuit Judges, and WADE, District Judge.

WADE, District Judge. This case was before this court upon appeal from order upon motion to dismiss. 236 Fed. 712, 150 C. C. A. 44.

The defendant has the legal title to a.certain mining lease, which plaintiff claims to own, because, as he alleges, the defendant, as his agent, procured said lease for the plaintiff. Plaintiff claims that he paid to the defendant $12.50, the cost of the lease, and also $1 for the services of the defendant. The allegations of the plaintiff being denied, evidence was introduced, and a decree entered in favor of the defendant, from which plaintiff appeals.

The evidence is in direct conflict; we have read it with care. Nothing could be gained by any attempt to include the substance thereof in this opinion. The lease to defendant is in writing, and it is of record. The plaintiff sought by parol evidence to set aside this written evidence of title. He attempted to prove that what appeared to be an absolute title was in fact a title held in trust.

It is elementary that, before a written lease or deed showing absolute title can be by parol evidence set aside, or decreed to be a title in trust, the evidence must be clear, satisfactory, and convincing. “Parol evidence to establish a resulting trust must be clear, unquestionable, and certain." Higginbotham v. Boggs, 234 Fed. 253, 257, 148 C. C. A. 155, 159. See, also, Price v. Wallace, 242 Fed. 221, 223, 155 C. C. A. 61; Teter v. Viquesney, 179 Fed. 655, 661, 103 C. C. A. 213; Pomeroy's Eq. Jurisprudence, § 1040; 13 Ency. of Evidence, Can For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

124, 125. The trial court rightly held that the evidence was insufficient. · This conclusion renders it unnecessary to consider the other defenses pleaded: (1) That the plaintiff, because of his employment under the Department of Justice, was disqualified from taking the lease; (2) that the plaintiff, because of demands and charges made in certain letters to defendant, does not come into court with clean hands, and therefore cannot recover.

Errors assigned upon exclusion of evidence, and upon refusal of the trial court to hear counsel in argument, are insufficient to warrant a reversal. If the evidence offered had been admitted, the result could not have been different, and after a trial judge has heard the evidence, and is convinced as to his duty in the case, he is under no obligation to listen to an argument by counsel.

The decree of the District Court is affirmed.

SHAPLEY V. CAHOON.

(Circuit Court of Appeals, First Circuit February 11, 1919.)

No. 1384.

HABEAS CORPUS 53—JURISDICTION OF FEDERAL COURTS-FEDERAL QUESTION-PLEADING.

A petition for habeas corpus held not to state facts sufficient to give a federal court jurisdiction to interfere with the action of a state court, on the ground that it was in violation of the federal Constitution.

Appeal from the District Court of the United States for the District of Massachusetts.

Petition by Sarah Chandler Shapley against Elisha H. Cahoon for writ of habeas corpus. From a decree denying the writ, petitioner appeals. Remanded.

Henry C. Attwill, Atty. Gen. of Massachusetts, and Max L. Levenson, Asst. Atty. Gen. of Massachusetts, for respondent.

Before BINGHAM and ANDERSON, Circuit Judges, and ALDRICH, District Judge.

ALDRICH, District Judge. This case involves a petition for a writ of habeas corpus, which was denied in the court below and is here on appeal. The arguments before us proceeded upon broad lines, and upon the general theory that the Massachusetts statutes, and the court proceedings thereon, offend the federal Constitution in respect to the right of due process of, law. We think, however, that the petition does not disclose with sufficient particularity anything which would warrant this court in interfering with the proceedings in the state court. Neither the allegations as to the state laws, nor in respect to the proFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

255 F.-44

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