Before McLAUGHLIN and KALODNER, Circuit Judges, and FEE, District Judge
McLAUGHLIN, Circuit Judge.
This appeal is from an order of the District Court which overruled appellant's petition to vacate a default judgment entered against him in a denaturalization proceeding on July 17, 1942. The petition was originally filed in the District Court, January 7, 1947.*fn1 On February 17, 1947, it was dismissed on the ground that the Court had lost jurisdiction of the matter through lapse of time. On that occasion the stated position of the Government was that the material allegations of the petition were denied and that in the event of a hearing on the merits of the petition, those allegations would be contested. We affirmed the dismissal of the petition.*fn2 The Supreme Court reversed*fn3 and on April 4, 1949, in its amended judgment in the case, said: "The judgment of the Court of Appeals is reversed and the cause is remanded to the District Court with directions to receive evidence on the truth or falsity of the allegations contained in petitioner's petition to vacate the default judgment entered in the denaturalization proceedings."*fn4
The District Court had a hearing in accordance with the above mandate on June 15 and 16, 1949, and some twenty-two witnesses testified. At that hearing it was conceded by appellant's attorney that the burden of proof, so far as having the default set aside, was on the defendant. From the stipulated facts and from the testimony, the Trial Court made written findings of fact and conclusions of law. 9 F.R.D. 282. Appellant urges that four of the findings of fact are in error (one of those so designated is really part of the first conclusion of law), that the Court erred in refusing to find that appellant was "not guilty of negligence in failing to do more than he did initially in seeking to defend the denaturalization proceedings" and that the Court erred in the admission of certain testimony.
It was admitted, and properly so, by the attorney for the appellant at the oral argument on this appeal, that the rule governing both the findings of fact and refusals of requests to find, is whether there was substantial evidence supporting the action of the District Judge.*fn5
Five points of appellant's six points are interrelated. They call for a detailed examination of the evidence and will be discussed together.
(1) the Court below erred in finding as a fact that appellant knowingly, voluntarily and intentionally permitted entry of the default judgment cancelling his certificate of citizenship,
(2) appellant's statement in his petition that "in view of his poor physical condition, petitioner was unable to get around very well and since he was also in very poor financial condition petitioner had no money with which to retain a lawyer to represent him" was not false as found by the Court,
(3) appellant's statements that he had written a letter to the American Civil Liberties Union asking for legal assistance, which letter, prior to mailing, was taken from him by agents of the Federal Bureau of Investigation, and that at the time he claims he was arrested he was working on a draft of answer to the complaint in this cause which he was unable to complete because of his alleged arrest and which was left at his home when he was taken away, were not false as found by the Court,
(4) appellant's allegation in paragraph 5 of his petition, that his court appointed attorney in the New York criminal case, after having promised to look into the naturalization matter, instead of doing so, "neglected the matter entirely and permitted a judgment to be entered against petitioner by default, after having, by his promises, lulled petitioner into a sense of security with respect to this matter" was not false as found by the Court,
(5) the Court erred in not finding as a fact that the harassing criminal trial to which appellant had been subjected, and the long period of confinement in jail, had so proccupied appellant's mind and undermined him physically and mentally that he was not guilty of negligence in failing to do more than he did initially in seeking to defend the naturalization proceeding.
Appellant testified that he was served with the complaint in this denaturalization action in the middle of May, 1942, and that he read it. The return on the summons shows that it was served personally on appellant May 15, 1942. Under the statute, appellant had sixty days from the date of the service upon him in which to appear. He states in his petition that he became a naturalized citizen on November 16, 1933. According to his own testimony, for about two years prior to the end of 1941 he had been writing editorials at the rate of at least one a week for a weekly newspaper.He was vice president of the company which published the newspaper. In addition, he traveled about, lecturing on German-American subjects. He was eastern departmental leader of the German-American Bund from 1939 to its dissolution when, as he says, "the war broke out". He had been a mason, bricklayer and tile setter. Even in the above brief outline ample evidence is indicated to justify the conclusion of the District Judge that appellant "* * * is more than ordinarily intelligent". Appellant testified that he knew he had sixty days to answer the complaint and that his time expired July 14, 1942. He said he was always thinking of the expiration date.
During the early spring of 1942, as the evidence showed, and as the Trial Court found, appellant was seriously ill from stomach ulcers and had been confined to a hospital from March 8th to March 26th of that year. After his release from the hospital, also as the Court found, appellant's health steadily improved. On April 20th, less than a month after he left the hospital, he attended a party at Backofen Tavern, Union City, New Jersey. That party, as appellant says, was given "to welcome me back to my health." Its date, according to appellant, coincided with Hitler's birthday. On June 9, 1942, he drove his station wagon from Camp Nordland, New Jersey, a distance of forty miles, to New York City, where he stayed overnight. He went to Hartford, Connecticut, by train the following day and there testified before a Federal Grand Jury. On returning to New York he stayed overnight in that city and drove back to Camp Nordland in his station wagon the next day. F.B.I. agents who saw Klapprott on June 5, June 27 and July 7, indicated ...