Marx v. United States

LEWIS, District Judge.

This is an appeal from an order denying the application of Fritz Marx, an alien, to be admitted to citizenship pursuant to Act June 29, 1906, c. 3592, 34 Stat. 596 , as amended (Comp. St. § 4351 et seq.).

Jurisdiction here is challenged by motion to dismiss the appeal, and we are of opinion that the objection is well taken. U. S. v. Ness, 245 U. S. 319 , 38 Sup. Ct. 118, 62 L. Ed. 321 ; Appeal of Cook, 242 Fed. 932 , 155 C. C. A. 520 ; U. S. v. Neugebauer, 221 Fed. 938 , 137 C. C. A. 508 ; U. S. v. Dolla, 177 Fed. 101 , 100 C. C. A. 521 , 21 Ann. Cas. 665; State ex rel. v. Superior Court, 75 Wash. 239 , 134 Pac. 916 , Ann. Cas. 1915C, 425.

The cases relied on by appellant (U. S. v. Ojala, 182 Fed. 51 , 104 C. C. A. 491 ; U. S. v. Doyle, 179 Fed. 687 , 103 C. C. A. 233 ; U. S. v. Poslusny, 179 Fed. 836 , 103 C. C. A. 324 ; Bessho v. U. S. 178 Fed. 245 , 101 C. C. A. 605 ; U. S. v. Rodiek, 162 Fed. 469 , 89 C. C. A. 389 ), and others, were determined before the ruling in the Ness Case. Furthermore, in none of those cases was the question of jurisdiction raised.

The action of the District Court was not a denial or adjudication of any right on the part of appellant. His civil status and rights here, gained hy residence, were not affected by the order. He petitioned for a change of his political status in accordance with the provisions of the act. He sought to obtain a privilege by favor, not of right; and had no case or controversy against or with" appellee. *296 Johannessen v. U. S., 225 U. S. 227 , 32 Sup. Ct. 613, 56 L. Ed. 1066 .

The late Judge HOOK presided at the argument, and concurred in these conclusions.

Appeal dismissed.