District Court with directions to dismiss the complaints. In a very brief per curiam opinion it was stated:
'An affidavit showing good cause is a prerequisite to the initiation of denaturalization proceedings. The affidavit must be filed with the complaint when the proceedings are instituted.' 78 S. Ct. 713.
and United States v. Zucca, supra, was cited. It is the foregoing expression which has probably stimulated the defendant to bring the present motion.
Although the notice of this motion grounds it upon subdivision (4) of Rule 60(b), i.e., that 'the judgment is void', the briefs and oral arguments of both parties have treated the motion as also invoking subdivision (6) of the Rule. We proceed to deal with each of these grounds.
Were this case now initially before us upon defendant's motion to dismiss the complaint for, or upon his plea of, the failure to file the affidavit of good cause with or prior to the complaint, we would feel bound under Zucca, as most recently construed by the United States Supreme Court in Matles and Lucchese, to dismiss the action. Assuming that the issue had been properly presented to this Court, and that it should have followed Zucca as most recently construed, such error would be reviewable on appeal but would not render void the judgment entered thereon. A judgment is not rendered void because of error of a Court clothed with jurisdiction over the subject matter and the parties. Foltz v. St. Louis & S. F. Ry. Co., 8 Cir., 1894, 60 F. 316, 318. This Court's jurisdiction over the subject matter is conferred by 8 U.S.C.A. § 1421(a). It had jurisdiction over the parties by virtue of the personal service of summons upon the defendant. By failing to attack the complaint by motion or plea under Rule 12(b), defendant waived (Rule 12(h)) the availability as a defense of the claimed untimely filing of the affidavit of good cause. In Temple v. Lumber Mutual Casualty Ins. Co. of New York, 3 Cir., 1958, 250 F.2d 748, at page 752, Judge McLaughlin, speaking for the Court of Appeals, epitomizes the rule of judgment finality in the following language:
'A determination by a competent court of a question of its own jurisdiction diction over the subject matter of an action before it is not subject to later attack except for fraud; * * *. In other words, decisions by competent courts with respect to questions of jurisdiction over subject matter are res judicata as to those items when one of the same parties or their privies attempts to re-litigate the questions.'
The judgment against the defendant in this case is res judicata between the parties. Stoll v. Gottlieb, 1938, 305 U.S. 165, 59 S. Ct. 134, 83 L. Ed. 104; American Surety Co. v. Baldwin, 1932, 287 U.S. 156, 53 S. Ct. 98, 77 L. Ed. 231; Baldwin v. Iowa State Traveling Men's Ass'n, 1930, 283 U.S. 522, 51 S. Ct. 517, 75 L. Ed. 1244; Loucke v. United States, D.C.S.D.N.Y.1957, 21 F.R.D. 305. There has been no showing or intimation of fraud herein.
In none of its relevant decisions has the Supreme Court treated the statutory requirement for the filing of an affidavit of good cause as a condition precedent to acquisition of jurisdiction by the court in proceedings under 8 U.S.C.A. 1451. In Zucca, 351 U.S. at page 99, 76 S. Ct. at page 676, the Court held the affidavit 'a procedural prerequisite to the maintenance of proceedings thereunder', but in 351 U.S. at page 100, 76 S. Ct. at page 677 characterized the filing of such affidavit 'as a prerequisite to the initiation of such proceedings'. The same Court in Matles, 356 U.S. 256, 78 S. Ct. 712, refers to the affidavit as 'a prerequisite to the initiation of denaturalization proceedings.' In United States v. Felt & Tarrant Co., 1931, 283 U.S. 269, 272-273, 51 S. Ct. 376, 377, 75 L. Ed. 1025, the Supreme Court reviewed on certiorari a judgment of the Court of Claims allowing a taxpayer recovery of income and excess profits taxes claimed to have been illegally exacted. The Government's sole objection to the recovery was that the claim for refund filed by the taxpayer 'as a prerequisite to suit' did not comply with the applicable statute. In reversing the Court of Claims, the Supreme Court, citing Tucker v. Alexander, 1927, 275 U.S. 228, 48 S. Ct. 45, 72 L. Ed. 253, pointed out that:
'The filing of a claim or demand as a prerequisite to a suit to recover taxes paid is a familiar provision of the revenues laws, compliance with which may be insisted upon by the defendant, whether the collector or the United States. * * * Compliance may be dispensed with by waiver, as an administrative Act, * * *; but it is not within the judicial province to read out of the statute the requirement of its words.'
Because there was a waiver of this requirement in Tucker, the Court in that case reversed the District Court's dismissal of the action, and in 275 U.S. at page 231, 48 S. Ct. at page 46, Mr. Justice Stone, discussing the statutory prerequisite of a filed claim indicates, in the following language, that it is not jurisdictional:
'Literal compliance with statutory requirements that a claim or appeal be filed with the Commissioner before suit is brought for a tax refund may be insisted upon by the defendant, whether the Collector or the United States. * * * The statute and the regulations must be read in the light of their purpose. They are devised, not as traps for the unwary, but for the convenience of government officials in passing upon claims for refund and in preparing for trial. Failure to observe them does not necessarily preclude recovery. If compliance is insisted upon, dismissal of the suit may be followed by a new claim for refund and another suit within the period of limitation. If the Commissioner is not deceived or misled by the failure to describe accurately the claim, as obviously he was not here, it may be more convenient for the government, and decidedly in the interest of an orderly administrative procedure, that the claim should be disposed of upon its merits on a first trial without imposing upon government and taxpayer the necessity of further legal proceedings.'
No suggestion has been made that any new evidence would be available to either party in the present case. Having gone to trial upon the merits in a case of which the Court had jurisdiction, the defendant is bound by the resulting judgment.
The remaining ground urged by the defendant is not supported by the facts nor within the purview of applicable legal principles. The present action is a civil, not a criminal action. Ackermann v. United States, supra; Klapprott v. United States, 3 Cir., 1948, 166 F.2d 273, reversed on other grounds, 335 U.S. 601, 69 S. Ct. 384, 93 L. Ed. 266. Subdivision (6) of Rule 60(b) authorizes the trial court to relieve a party from a final judgment for 'any other reason justifying relief from the operation of the judgment.' It is obvious that the adjective 'other' implies exclusion of the previously stated five grounds for the relief. No fraud has been shown or suggested. No barrier, similar to that which existed in Klapprott, supra, is to be found in the present case which could be deemed to have interfered with defendant's assertion of his right to insist that the statutory procedural prerequisite be complied with. In Ackermann, supra, the defendant also invoked subdivision (6) of Rule 60(b) and relied upon Klapprott as his authority. He claimed that his denaturalization was erroneous, that he did not appeal the judgment because of certain representations by the Alien Control Officer that he would be released at the end of the War and because of lack of funds. Distinguishing the Klapprott case as one of 'extraordinary circumstances' the Court in Ackermann, 340 U.S. at page 198, 71 S. Ct. at page 211, refused to find justification under Rule 60(b) (6) because:
'Petitioner made a considered choice not to appeal, apparently because he did not feel that an appeal would prove to be worth what he thought was a required sacrifice of his home. His choice was a risk, but calculated and deliberate and such as follows a free choice. Petitioner cannot be relieved of such a choice because hindsight seems to indicate of him that his decision not to appeal was probably wrong * * *. There must be an end to litigation someday, and free, calculated, deliberate choices are not to be relieved from.'
In the foregoing language is to be clearly discerned a recognition that the policy of the law is to protect the finality of judgments, not only for the benefit of the interests and rights of the litigants, but in the public interest in expeditious disposition of litigation. See, Collins v. City of Wichita, Kansas, 10 Cir., 1958, 254 F.2d 837; Elgin National Watch Co. v. Barrett, 5 Cir., 1954, 213 F.2d 776; Berryhill v. United States, 6 Cir., 1952, 199 F.2d 217; Ripperger v. A. C. Allyn & Co., Inc., 2 Cir., 1940, 113 F.2d 332; Foltz v. St. Louis & S. F. Ry Co., supra; and Loucke v. United States, supra. The Court held in Elgin (213 F.2d 780), construing Rule 60(b)(6), that the mere fact that the judgment was erroneous was not 'any other reason justifying relief'; and in Berryhill a change in the judicial view of applicable law, expressed after the judgment had been entered, was likewise considered an insufficient basis for vacating the judgment.
I conclude that the judgment here sought to be vacated is not void, and that the defendant has failed to show any basis warranting relief under Rule 60(b).
The motion is accordingly denied, and an order may be presented in conformity with this determination.
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