at the time and as a part of his naturalization. The court is without power to make the change upon this belated application. The inconvenience to the applicant may perhaps be overcome by an application to the court of common pleas.'
The Court denied petitioner's request to amend the naturalization record.
In the case of In re Perkins, D.C.S.D.,N.Y., 1913, 204 F. 350, 351, petitioner was duly naturalized as Frederick Persky in 1898 and subsequently in 1912 had his name changed by order of the County Court of Kings County to Perkins. In 1913 he petitioned the court to have his naturalization record changed by substituting the name Perkins for Ersky. The Court denied his application, stating:
'I think the court is without power to do what is asked, in the absence of some statutory authority.'
The number of recorded cases dealing with the question of the amendment in a naturalization record after the term of court has expired are few in number.
In the case of the United States v. Vogel, 2 Cir., 1919, 262 F. 262, 265, the Court, dealing with a request for the amendment of a petition to show the renunciation of allegiance to the correct sovereignty, states as follows:
'It is not within the power of courts, in our opinion, to vary this rule and permit the applicant at a later time to recognize his mistake and ask to change it, for to do so would be permitting the applicant to declare his intention of renunciation at a time other than when making his application.'
It was also held in the following cases that the court had no authority to amend the petition and certificate of naturalization to show a petitioner's true age: In re Cohen petition, D.C., 53 F.2d 865; In re Awns petition, D.C., 36 F.Supp. 32.
In the case of United States v. Vogel, reported in 2 Cir., 262 F. 262, it was furthermore held that the Court had no right to order an amendment of a declaration of intention which involved an attempt to change the name of a former sovereign.
However, in the cases of United States v. Viaropulos, D.C., 221 F. page 485, and In re Denny, D.C., reported in 240 F. page 845, it was held that a mistake in the name of the sovereignty of which the alien is a subject can be corrected by an Order of Court where the mistake appears in the declaration of intention.
Under the provisions of Rule 60(a) of the Rules of Civil Procedure, 28 U.S.C.A.following section 723c, it is provided that: 'Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.'
Under the provisions of Rule 60(b) of the Rules of Civil Procedure it is provided that: 'On motion the court, upon such terms as are just, may relieve a party or his legal representative from a judgment, order, or proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. The motion shall be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court (1) to entertain an action to relieve a party from a judgment, order, or proceeding, or (2) to set aside within one year, as provided in Section 57 of the Judicial Code, U.S.C., Title 28, § 118, a judgment obtained against a defendant not actually personally notified.'
Old Equity Rule 19, 28 U.S.C.A. § 723 Appendix, was substantially the same. Rule 6(c) of the present Rules of Civil Procedure provides that: 'The period of time provided for the doing of any act or the taking of any proceeding is not affected or limited by the expiration of a term of court. The expiration of a term of court in no way affects the power of a court to do any act or to take any proceeding in any civil action which has been pending before it.' And Rule 81(a)(2) makes the Rules just quoted directly applicable to naturalization proceedings in that it provides that those Rules are applicable to such proceedings except to the extent that the practice herein is otherwise defined by statute.
A proceeding for naturalization is essentially a judicial proceeding. Tutun v. United States, 270 U.S. 568, 46 S. Ct. 425, 70 L. Ed. 738.
Once we remove from a case any question of fraud, misrepresentation or improper motive, it seems common sense to say that there is no sound ground for making a distinction between the right of a court, under the Ruels just referred to, to alter its records for the purpose of correcting a mistaken entry when that entry has been made at the instance of the court itself, and when made as the result of the mistake of a party to the proceeding, provided clear and convincing proof is presented. No one questions the right and duty in the former case. Why should it be questioned in the latter? The underlying purpose in each case is the same, namely, to have the permanent records of the court disclose the actual facts.
It is the belief of the Court in this case that no fraud, misrepresentation or improper motive existed on the part of the petitioner in any way whatsoever. That the mistake in the name of the petitioner, as it was given at the time that his citizenship was granted, was a clerical mistake and that his request for the name of Emilio Leal Garcia was inadvertently set forth due to his lack of understanding and limited intelligence, and due to the apparent confusion which existed on the part of the clerk who assisted inthe preparation of the various petitions which it was necessary for him to execute in order to be qualified for admission to citizenship. The Court is aware that generally such amendments should not be permitted once citizenship has been granted, unless the facts are clear and convincing that the mistake which appears was due to a clerical error or a misunderstanding on the part of the individual who assisted the applicant in the preparation of the various petitions which it was necessary for him to sign in order to meet the requirements of the law.
It is, therefore, the opinion of the Court that clear and convincing evidence definitely establishes the error which exists to be a clerical mistake. Said clerical mistake, without question of doubt, was not intentional but it was due to the misunderstanding of the Clerk who assisted the petitioner in the preparation of the various forms which he filed to qualify himself for admission to citizenship. It is the duty of the Court to direct the correction of the name of the petitioner by substituting in lieu of the name Emilio Leal Garcia, the name Emilio Leal. An order, will, therefore, be filed directing the Clerk of Courts to adjust and change the records accordingly.
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