reason for the leisurely pace which apparently was the standard procedure for these cases in the United States District Court in New York in the 1930's when respondent's father was denaturalized. If service is made at a great distance and the answering time is comparatively short, the constitutional question of due process may arise. The federal statute does not specify any time limit within which the defendant must be served or publication must begin. The court in its Order for Service by Publication specified that service be in accordance with Rules 50 and 52, but did not incorporate in the order the time limit prescribed by Rule 51. Under the circumstances of this case the lapse of five and one-half months between the date of the order for publication and the date publication was commenced did not "trench on any constitutional rights of defendant (Panos Psalidas) nor involve the jurisdiction of the trial court," to borrow from Sunal v. Large, 67 S.Ct. 1588. During this five and a half month period Panos Psalidas was served by registered mail. At best due process is a slow ritual. What is termed "an unreasonable delay in publishing the notice" in the state court decisions, becomes a reasonable time for the defendant to return to meet the challenge to his citizenship in a denaturalization proceeding.

The Service contends that Rule 60(b), Federal Rules of Civil Procedure, precludes respondent's attack on the 1940 denaturalization decree.

The Service representative argued that respondent's present attack on the 1940 decree of denaturalization is precluded by Rule 60(b) of the Federal Rules of Civil Procedure. We have paid particular

Exhibit 3: Memorandum to Commissioner of Immigration and Naturalization from Assistant District Director, New York, October 23, 1939, states, "This case is being placed on a call-up for one year."

'Rule 60(b). Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable

attention to the discussion of the application of Rule 60(b) in Title v. United States, 263 F.2d 28 (9th Cir. 1959), and in United States v. Borchers, 163 F.2d 347 (2d Cir., 1947), cert. den. 332 U.S. 811, and United States v. Kunz, 163 F.2d 344 (2d Cir., 1947). These cases do not involve the entry of a denaturalization judgment by default. In each case the defendant had appeared but failed to prosecute his appeal. These cases hold that motions to open and vacate do not lie as a substitute for a deliberately abandoned appeal, and that appellants in effect consented to the entry of the decrees against them, that their time to appeal had long since expired, and that the motions, based on alleged newly discovered evidence and other technicalities, had no merit. Zurini v. United States, supra, holds that Rule 60 (b) of the Federal Rules of Civil Procedure applied to this proceeding and required that a motion to vacate a denaturalization judgment be made within a reasonable time, and, upon certain grounds, within one year.

The Supreme Court in Klapprott v. United States, 355 U.S. 601 (1949), split on the application of Rule 60(b) to vacate a denaturalization judgment by default where the judgment was entered without proof of the charges made. The four decisions stressed the "special circumstances," and the majority decision states that Klapprott was as deprived by the Government of an opportunity to defend himself as if he had "never received notice of the charges." There are no "special circumstances" in the matter now before as were present in Klapprott (war, criminal prosecution and a long imprisonment).

It seems to us that, only if we were to find the 1940 decree of denaturalization against Panos Psalidas void for lack of jurisdiction, would the application of Rule 60(b) become an issue. Believing that the notice to respondent's father was adequate and complied with the requirements, and that the decree is, therefore, valid and binding, we do not reach this question.

time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 23, U.S.C., §1655, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coran vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action. As amended Dec. 27, 1946, and Dec. 29, 1948, effective Oct. 20, 1949.

Respondent received adequate notice under the New York law.

Respondent received personal notice of the petition to revoke his citizenship, but, because he was absent from the United States and from the district in which he last had his residence, he believes that he is entitled also to notice by publication in the manner provided by the laws of New York for serving absentees. The applicable rules of practice are set forth above in footnotes 2, 3 and 4. The New York Rules of Civil Practice and Carmody-Wait, Cyclopedia of New York Practice, make a clear distinction between substituted service and service by publication. New York also permits a third form of service referred to as "service without the state under an order of publication," with which we are not concerned here. The Cyclopedia states, Vol. 3, par. 86, p. 191, "Substituted service may be made only within the state upon a resident thereof." Psalides who resided abroad could not have been served by substituted service. Panos Psalidas was, in fact, served by publication as well as personally. Volume 3, par. 105, pp. 212-214, describes service by publication as follows:

Service of a summons by publication is a method adopted, generally speaking, to reach cases where service cannot be effected either personally within the state or by substitution. Nonresident persons and, under certain circumstances, residents who cannot otherwise be reached are thus constructively notified of the commencement of legal proceedings by the publication of the summons in a newspaper in accordance with prescribed formalities for a certain length of time, and the mailing of the summons to them, or by serving the summons personally on the defendant without the state.

The prescribed method of service by publication is designed to afford a reasonable probability that actual notice will reach the defendant. Notice is directed through several channels in the reasonable expectation that, through one of the channels, it will be brought to the attention of the defendant. But the court acquires jurisdiction to proceed in such case whether the defendant is actually notified or not.

Where a summons has been served by publication and a defect in the course of the proceedings has been discovered, the question arises whether the defect is jurisdictional so that the proceedings are absolutely void and not amendable, or whether the defect is a mere irregularity which may be cured. In order for the court to acquire jurisdiction, there must be a substantial compliance with the statute. Notice to the defendant of the pendency of the action given in a manner substantially different from that prescribed by the legislature is nugatory. If a defect is jurisdictional, it is fatal * * *

The court may disregard and cure defects and irregularities "not being against the right and justice of the matter." And so the courts may disregard unsubstantial defects even in the service of process of (sic) publication.

There was an irregularity in service under the New York Rules, as complained by respondent. It is provided by the New York

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Rules that the first publication of a summons must be made within three months after the order of publication is granted. (For R.C.P. 51 see footnote 4.) As pointed out above, the order of the court on December 7, 1939, for service by publication made no mention of Rule 51.

Respondent refers to New York cases holding that failure to comply strictly with the statutory requirements for publication rendered proceedings ineffective and that improper mailing is jurisdictional, and not an irregularity. The New York cases on substituted service have no application here. Respondent relies on Korn v. Lipman, 201 N.Y. 404, 94 N.E. 861 (1911), as the leading New York case concerning substituted service. Substituted service was also involved in Robinson v. Five One Five Associates Corp., 180 Misc. 906, 45 N.Y.S.2d 20 (1943), cited by respondent.

We have examined the numerous New York cases and believe the leading cases are Valz v. Sheepshead Bay Bungalow Corp., 249 N.Y. 122, 163 N.E. 124, cert. den. 49 S.Ct. 82, 278 U.S. 647, and MishkindFeinberg Realty Co., v. Sidorsky, 189 N.Y. 402, 82 N.E. 448. In Valz v. Sheepshead Bay Bungalow Corp., the court found that there was no willful failure to comply with the order, and that the error did not deprive the defendants of the opportunity to appear and defend. The lower court pointed out, 223 N.Y.S. 329, 337, that a case where the defendant did not know of the pendency of the action should not be followed as authority. That there is a close question is indicated by the fact that the Court of Appeals, 249 N.Y. 122, sustained the decision of the lower court by a vote of four to three. The majority hold that the defendants' failure to appear "was not occasioned, or contributed to, by the defect in publication," and that they received formal notice of their right to defend, and they chose not to assert any defense. Counsel maintains that Sheepshead Bay is applicable only to a situation where the error in publication was corrected by a nunc pro tunc order. We think the holding is of broader application and that the rule that the defect may be disregarded or cured in the court's discretion where the parties have not been prejudiced is consistent with the holdings in the federal cases of Cardillo and Antonacci, supra.

Mishkind-Feinberg Realty Co. v. Sidorsky, 189 N.Y. 402, 406, N.E. 448, 449, is a persuasive New York authority wherein the court stated:

The Supreme Court has very broad powers, either before or after judgment in furtherance of justice to amend any process, pleading or proceeding. Section 723. It would be difficult to use more comprehensive language than is used in that section. The correction of the clerical error in the order was not harmful to Rabinovitch, but was in furtherance of justice. To deny

power in the court in this case to make such an order would subordinate substance to form.

As with the federal cases, we believe the New York cases which developed from wartime situations should not be considered binding precedents. For example, respondent cites Risley v. Phenix Bank, 83 N.Y. 318 (Ct. App. N.Y., 1880), which related to the confiscation of property belonging to a South Carolina bank, but which was deposited in a bank in New York. This decision in no way relates to the matter now before us. Robinson v. Five One Five Associates, supra, concerns a defendant whose whereabouts was unknown, because he was serving in the armed forces in World War II. The court stated that clearly he did not know of the action and could not know, and that the Civil Procedure Act was unsuited to wartime conditions. Respondent cites Malone v. Citarella, 182 N.Y.S.2d 200 (S.Ct. App. Div. 1959), wherein a judgment obtained in 1940 was found void in 1959 for serious procedural irregularities. The judgment was entered by a clerk with no authority and was a nullity. Malone v. Citarella differs materially from the instant case which involves both actual notice and what the courts refer to as "substantial compliance."

The state court decisions depend on the individual facts and the applicable statute. For example, Schulte Real Estate Co., Inc., v. Pirkig, 78 N.Y.S.2d 815 (S.Ct. N.Y. City, 1948), points out the difference between Rule 50, Rules of Civil Practice of 1933, regarding service by publication, and paragraph 231, Civil Practice Act, 1933, providing for substituted service, and the case involves the latter rule. Counsel cites In re Manley's Estate, 226 N.Y.S.2d 21 (Surrog. Ct. N.Y. City, 1962), which is not pertinent for our purposes. It involved an estate and probate controversy, wherein there were false statements of essential facts, and the executrix failed to notify some of the distributees under most questionable circumstances.

Counsel cites Mojarriets v. Saenz, 80 N.Y. 547 (N.Y. Ct. Apps., 1880), where publication of a summons was not made within 30 days after an attachment of property, and the court held that by that omission the attachment fell. Ferguson v. Crawford, 70 N.Y. 253 (N.Y. Ct. Apps., 1887) concerned a foreclosure of a mortgage where the defendant was alleged to have appeared through his attorney, whereas, in fact, neither he nor his attorney was served or appeared, but the appearance by the attorney and consent to entry of a judgment was by forgery. The other New York cases cited also relate to attachments of property, and orders of foreclosure and for damages, and are not pertinent.