Johnson v. Nickoloff, 52 F.2d 1074 (9th Cir. 1931)

Herman Weinberger, of San Francisco, Cal., and Louis K. Pratt, of Fairbanks, Alaska, for petitioner.

Albrecht & Taylor, of Fairbanks, Alaska, for respondent.

Before WILBUR and SAWTELLE, Circuit Judges, and JAMES, District Judge.

*1075 PER CURIAM.

This is a motion or petition filed by Justus Johnson, appellant, for leave to prosecute his appeal in forma pauperis under the Act of June 27, 1922, c. 246, 42 Stat. 666 (28 USCA § 832). This statute expressly limits the parties entitled to take advantage of its provisions to "any citizen of the United States entitled to commence any suit or action, civil or criminal, in any court of the United States. * * *" The cases uniformly hold that in order to proceed thereunder one must be a citizen of the United States. Volk v. B. F. Sturtevant Co. (C. C. A.) 99 F. 532; The Memphian (D. C.) 245 F. 484; The Bennington (D. C.) 10 F.(2d) 799. Petitioner claims to be a citizen of the United States by reason of having filed a declaration of intention to become a citizen on July 15, 1931, and because of long-continued residence in the territory of Alaska, lasting over a period of about twenty years. This is not sufficient, as a person does not become a citizen of the United States until the procedure of naturalization has been fully complied with and an order divesting him of his former nationality and making him a citizen of the United States has been signed by a judge of a court having jurisdiction. 26 Op. Attys. Gen. 611. The petitioner, not being a citizen of the United States, is not entitled to the benefits of the statute which he seeks to invoke, and the petition must for that reason be denied.

There is a further reason for denying this petition, in that there is nothing in the affidavits accompanying the petition showing the grounds upon which he bases his appeal. In this respect there is a failure to comply with the requirements of the statute. Kinney v. Plymouth Rock Squab Co., 236 U.S. 43, 35 S. Ct. 236, 59 L. Ed. 457.

Motion denied.