any, att-otney lappeal'ing gllnerally in behalF of the appellants,.: ,dBut we wish tonlWl'litunderstood that we have. Ddtintended to establish a edent,ort.togive a construction to therulesauthorizingllOOtions to .dismiss' prior' to the ,actual calling of thecascs for court has but:oneterm in each year, and rule 17 does not warrant the.dismissalofa case until it shall have, beencalledfon hearing at.two terms successively: ,:;If'UpOll such call, at the second term neither party is ready a ,case will be then, dismissed by the court upon its own to argue: motion; the object of thei role heing, to prevent theslumbedng ,of cases nfterboth 'parties ,have lost interest therein. Rule,22 that where noeouhsel appearsand;no brieC:has been filed for the plaintiffin error or appellant when the case lit for trial, defendant may have the plaintiff called, and the writ of error or appeal dismissed. It is certainly plain that under this rule a motion to dismiss, made before the case is regularly reached"snd called for trial, is premature. Rule 23 provides for printing of the record and service of copies to be made at least six days before the trial"and that, if t,he record shall not have call of the docket, been printed when the the case maybe dismissed ·. The time ",hen a motion to dismiss for reqUirements of thilf rule may be triad'a'1s the same failure to as under rule 22. The regular call of.the is the CIlU that !sJUJ,l.de of the for trial, .and not "going througb any thepiirpqse ofil1forni\Jig RIl to the conditiorr'iot',pending to arrange thebGsinesa'of the court. The the'praQttcl'l in p,raclice in the sl1'preme court-as l1earlyas it Olaybe,andwe,thillk that if a case is docketed in time, any subsequent neglect should not authorize the respondent to':move'for a dismissaJpriorto 'the'actual call oithe case for trial. ' This, case r hils IDot been'·reached in the call of the dockiet,and in our opinion ,at this ;time entertain '8 motion to dismiss ,on such in this motion.
' ( ' ,'.
.', '"; ,GEE FOOXSING'l1. UNITEDSTA1ES.' ',' .:', "" . '.-.
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(Oircuit 001trt of 'r '; . , ' ," '.' '
Ninth Oircuit. -1 i .,
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'J.. l CmNBBB....Exo.WSIQN OJ' I)JMIGJu,l'I'TS.. '. ' " · ,. . ' . , ,.' , . · ,Unde,r, ... tbe Cpll,stitutio.n" Ja:ws . 'g'rant8 who are Cbineselaborers are'luapphcable to'a person bbrn lD tbe UUlted :.' ,:StatE)s, and slJi)jeot to ,Its, jurisdiction, ,evepj his not not,
2. BAME-RuB..w:·OOltPll's. i , : r . ,: 1 b\tQAAlf 11>' lie a Citiz\'l/1.'of turn to bis 'country, fiilma 'fOreign land,
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Ullit:ed StA\es, desiring to. r.efrolD doing so witbout due g rou n.d' to. I the. UlIlte.d S.tates c.' ourt' fora w rit !process..:Ofl. '. ".6.na.·.; &IlP1:v.itl./1 on. t.l1at . . .. .. Of .. ,hearingaJ;ldju,dlcial determinal1oQ. Of the facts 80 , 8l1egell; and no aol. of eo!igress can be understood 'Orconstrtied to be a bar to sucb hearing and' jJud1etal .' ,, " ,, '
GEE;' FOOK SING 17. ;VNITED STA',fES.
BAllE-EvIDENCE 011' ,I'LA:ClIl OF BIRTH;
A persoD of Chinese'pal'ell.tage testified, on a hearlnglnhabea8 carm18 proceed. ings W determine his right to come into the United States., that he was born in San Francisco in 1877, that he, was taken to China by his parents when under three years of age, and relnaine(1' 'there continuously until October,l1l90. On the ques. tionof his birth he was corrobOrated only by the hearsay testimony of other Chinese persons, who had seell, him but a few times., Betd, that a finding againBl; him should not be disturbed 0!1 appeal. '' ,
Appeal from the District Court of the, United .states for the Northern District of California. Petition for writ of habeas corpt18 to determine the right of petitioner to comeilito the United States. Petitioner appeals from a judgment remanding him. Affirmed. H. B. M. Miller, for appellant. W. G. Witter, Asst. U. S. Atty. Before,DEADY, HANFORD, and HAWLll:Y, District Judges. HAlWQRD, District Judge. From thl:l record it appears that on October 16; 1890, -one Gee Joong Ding filed a petition fora writ Qfhabeas corptl8 on behf1lf()f the appellant in ,the court for,the n9rthern district of alleging, in substAnce, that tlle appellant was then illegally of his liberty and imprisoned on board the steam-ship Belgic" at the port. of San FrallCil:\cq, by the master ofaaid v,essel; that the cause of said restraint amI imprisonment was that said master claimed that on said vessel, and a Chinese person, of Ute class prohibited by law from landing in the United States; that the appellant hada,pplied to the ;collector ,of customs ·for the port of San Francisco to be to land from sai!i vessel, and his application had been deniell by the collector; and that the appellant was not a person prohibited from entering or remaining in the United States, he having been born in the city of San Francisco, in the United States, and being a citizen thereof. Upon said petition a writ was issued, and about . r):lfaralterwarqs, the evidence in the before, a commISSIOner, to case was refeTl'ed totake proofs and report findings, according to the established practice of the district court in such cases. In his report the commissioner negatives the allegations of the petitioner in the important matter as to the citizenship of the appellant by findings that he is a' subject of the emperor of China, and that he has not by B'.1fficient evidence established his right to enter or reinainirfthe United States. The' case was heard by the district court, upon the evidence so taken, and the report of the with the result that the findings of the commission.eT were and a judgment given remanding the appellant. The case has been submitted in this court upon the record without argument;;" oWe' have c0I113idered alHhequestions :Of Inwand 1act which we·fin'd'involved; and OUT' conclusions are, that,ihasmuchas the fourthe COhstitution of the United States teenth, arti'cle of the that all persoJ;lsbQrn in and sUbject thereof, of the state
wherein JlJ.l(Y. resjde, theJaws excludingimmigrllnts who llre'Chinese< laborers.areinapplicable toa person born in this country, and subject to the its, government, even though his parents were not citizens, nor entitled to become under the laws providing for the naturalization of aliens; that any person alleging to be a citizen of the United States, and desiriNg to return to his country from a f?reign land.. and that he is prevented from doing so without due process of law, and' who on that ground applies to any United States court for a w,rit of habeas corpus, is entitled to have a hearing Bnd a judicial determinationof the facts so alleged; ,and that no act ofcongress can be \:inderstood or construed as a bar to such hearing and judiCialdetermination. The evidence in the case shows that it is an admitted fact that the appellant is of Chinese parentage. < 'His appearance anq. language proves that he.}sinall in: the one matter of his Americall. He feMmes that legal citizenship; a Chinamlin,and not he was born in San Francisco in 1877, that he was taken to China by his 'parMtsw,ht111 he was uu'Uerlhree yeats of age, and tHat heremttlned October, 1890. ' Under the citcumstlIDcesstatEid by'hiin,'butlittle;'if any';crede,nce should be given as t9 :the place of his ,birth, 'ahdhe is'coi:'rbborated on this vital point only by the testimony of other Chinese, persons, who cOlifessedly have seen' him bula few times, alid' can give only hearsa1eviderice. There eertainly iariot Slisclosed in'this tecordanJ?thing to justify this court in reversing judgment of thedi'strict court, on the gr6nttd 'of error in its 'findings' of fact.' '" · . ·, . , 'The judgment appealed from is' affirmed, and the cause remanded for su.ch further proceedings as be necessary.' ,
LEE Foo tl. SAlliE.· LuM SUEY,
CHEONG 'D. SAME'.,
(Oircuit Court of AppeaZs, Ninth. Circuit. January 25,:1892,)
Appeals from the Distriot Court of the United States for trict of California. Petl tion for writs of habeas corp1t8. Petitioners appeal from lIu!ondingtbem. 4 ffi l'med. .. . Chat'lea L. Weller, for appellants. Wi G. Asst. U. S.Atty. Before DEADY, HANFORD, and HA WLEY, DIstrict Judges
HANFORD. Distdet Judge. ,The opinioflofthiscourt in the clJseot 066 F()ok 8ing v. 1].8., 49 Fed.,Rep. 146, (justq1rd,) disposeso.faU thequeSoo tiona of law in these cases. . ,1s nQt sUfficient.to.inake a case in favor of the:ap!>ellant soclearils'to',warriult this court in rev'ersing thejudgment of district court upontlle facts. As to each of the cases we cOhsider thattheevidence,aa a whole; 'does t10trnakeas good a case for the