LEM HIN'G DUN
v; UNITED STATES.
145
In stating the question:whether the defendant Elizabeth so took part in the prosecution as to b'eliable for it, the court'appearsto have said that the defendants returned to New York together after the making of the complaint, when in fact they came separately. This is relied upon in favor of a Dew trial. But as they came after the prosecution wal'l started, whether they came together or separately was wholly immaterial. If not. the attention of the court should have been to the mistake, that it might be corrected. Some other pointl'l of the same sort are made, but are similai'ly and no better founded. No valid reasou', for setting aside the verdict is made to appear,' and the motion for that' purpose must be overruled. Motion denied. Stay oontinue(l SO days, for settling exceptions.
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LEKlhNG DUN C,' :j
'l7. UNITED STATES.
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Co'Urtof 4.ppeaZB, Ninth Circuit. January 7, 1892.}
:A.PiolliALi-i:hSMISSAL-'REcbBDS AND BRIEFS. intb:e oircuh ebllrt,of appeals dismissals are provided for if appears ll,11..,brief filed for appellant or plaintiff in error the case is, called for trIal," (itlile 23, 47' x.;) and also if the reco,rd has not been printed . ;thecas.e is l'!IBllhed in the regular call oUbe docket, "(Rule 23.) , Held, that time jIl4;lant,in, eaqb is not the time of going through the docket to the btls{n'ess of the'court; but the time of actual call fOr trial, and no motion to distbe;groullds mentioned can beentertatned before ,that time.
Appeal,from the District Court of the United States for the Northern District of California. Application for writ of habeas C07'P'U8 to release Lem Hing Dun from restraint on board the steamer City of Peking, and :to permit him to land in the United States. The court below found that the prisoner was not entitled to land under the exclusion act, and remanded him to the custody of the master, to be transported to China. The prisoner appeals. Z. T. Ch8on, for appellant. W. Witter, Asst. U. S. Atty. Before HANFORD, HAW'LEY,andMoRRoW, District Judges. District J' udge. A motion to dismiss the appealin this case has been made for the reasons that the appellant has failed to have the rac9rd Pri.bted, and copies thereof furnished to the adverse party, as required by rule 23 of this court, and that the attorney for the appellant is riot yet 'prepared to argue the case, although it was docketed in this court prior to the beginning of the present term in October last. We'hnve acted upon and granted similar motions at this session. In doing so; we were influenced by representations made in open court that counsel for the appellant,in case had declaradan intention to abandon'the appeal, and by the fact that the motions were not opposed by v.49F.no.2-10
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. '0'
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/ 25.,1892.) '.j"
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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, u .. ' w.
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 .' ,, " ,, '
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