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IN RE LAKEBO

August 27, 1940

Petition of LAKEBO


The opinion of the court was delivered by: YANKWICH

The petitioner seeks to modify the judgment of this court, rendered by the Honorable Edward E. Cushman, on January 25th, 1926, which denied him naturalization "in perpetuity".

He would have us relieve him of that clause which bars him "forever" from American citizenship, because, during the World War, after having made his declaration of intention to become a citizen of the United States, he withdrew it and claimed exemption from military service. 8 U.S.C.A. § 366.

 Our Circuit Court of Appeals, in a later proceeding for naturalization in the Southern District of California, held this judgment to be valid and res adjudicata, precluding subsequent naturalization. Lakebo v. Carr, 9 Cir., 1940, 111 F.2d 732.

 The judgment sought to be modified has long since become final. The term at which it was rendered has long since expired.

 No invalidity appears upon the face of the judgment.

 The provision barring naturalization "forever" is not a mere clerical error in the judgment.

 It is challenged as a judicial error.

 If it be such, it might have been corrected on appeal. Tutun v. United States, 1926, 270 U.S. 568, 46 S. Ct. 425, 70 L. Ed. 738.

 But no appeal was taken.

 We have no jurisdiction to modify the terms of a judgment of this character. United States v. Mayer, 1914, 235 U.S. 55, 67, 69, 35 S. Ct. 16, 59 L. Ed. 129; Sun Indemnity Co. v. United States, 3 Cir., 1937, 91 F.2d 120, 121; Aderhold v. Murphy, 10 Cir., 1939, 103 F.2d 492.

 The petition is denied. Exception to the petitioner.

19400827

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