Explicit in the findings and implicit in the judgment of the court below are two fundamentally essential propositions: First, that respondent, Smith, has a special interest in the matter sufficient to authorize him to maintain the action; second, that appellant, Reid, is not a citizen of the United States. I concur fully and in all respects in the foregoing opinion by RUDOLPH, J., which deals particularly with the rights and special interest of respondent, Smith, and now undertake to express the views of the court with reference to that portion of the present appeal which seeks a review of the trial court's determination that appellant, Reid, is not a citizen of the United States.
Subdivision 10 added to section 4, Act of June 29, 1906, c. 3592 (34 Stat. at Large 596), by Act of May 9, 1918, c. 69, § 1 (40 Stat. at Large, 542, 545), as amended by Act of May 25, 1932, c. 203, § 10 (8 USCA § 377), reads as follows: "Any person not an alien enemy, who resided uninterruptedly within the United *Page 317 States during the period of five years next preceding July 1, 1920, and was on that date otherwise qualified to become a citizen of the United States, except that he had not made a declaration of intention required by law and who during or prior to that time, because of misinformation regarding his citizenship status erroneously exercised the rights and performed the duties of a citizen of the United States in good faith, may file the petition for naturalization prescribed by law without making the preliminary declaration of intention required of other aliens, and upon satisfactory proof to the court that he has so acted may be admitted as a citizen of the United States upon complying in all respects with the other requirements of the naturalization law. (* * * As amended May 25, 1932, c. 203, § 10, 47 Stat. 166.)"
Shortly prior to the oral argument upon this appeal, it was made to appear by affidavit that appellant, Reid, subsequent to his appeal, and on or about August 20, 1932, had instituted proceedings in the District Court of the United States at Sioux Falls, S.D., seeking naturalization; that in such proceedings he sought to avail himself of the statute above set out, and alleged in substance that he had for many years believed himself a citizen of the United States and exercised the rights of citizenship in good faith, not discovering his mistake until December, 1931, when the circuit court of Minnehaha county determined that he was not a citizen; that in such proceedings in federal court defendant, Reid, had stated under oath that he intended and desired "to renounce absolutely and forever all allegiance * * * to George V * * * of whom at this time I am a subject. * * *"
Application was made to this court pursuant to order to show cause asking that certified copies of the various documents executed and filed by appellant in his proceeding in the federal court be added to the record herein and be considered by this court in connection with the present appeal. Respondent contends that this particular conduct of the appellant, Reid, pending the appeal is a matter proper for our consideration, and is decisive of the rights of the parties as to that portion of the present appeal which seeks to review the adjudication of the circuit court that Reid is not a citizen of the United States.
[9, 10] We announced during the oral argument that the *Page 318 application so to supplement the record would be granted. We think we were correct in so holding, and we are further of the opinion that the conduct of Reid subsequent to the taking of his appeal as evidenced by the copies of federal court records so admitted controls the situation before us so far as concerns any review of the trial court's determination on the citizenship point. It is true that this is an appellate court, and that its review, generally speaking, is properly confined to matters presented in the lower court, and that such review will not ordinarily be affected by events subsequent to the taking of the appeal. Such statement, however, is not universally true. Under some circumstances subsequent occurrences may affect the review in this court. Or perhaps it is more nearly accurate to say that sometimes subsequent happenings may create a situation where an appellate court will refuse to review all or some of the matters sought to be presented by the appeal. It is not necessary here to cite or refer to cases wherein questions presented for review by appeal have become moot because of subsequent happenings or cases where pending the appeal the party appellant has voluntarily performed and satisfied the judgment appealed from. In such cases, of course, the appellate court will not proceed further with its review. The present situation is not perhaps precisely parallel to the cases wherein a question becomes moot pending appeal or the judgment appealed from is voluntarily satisfied by the appellant, but in principle it is not distinguishable from such cases.
The learned circuit judge held that appellant, Reid, is not a citizen of the United States. By taking his appeal, Reid questioned that determination and sought review and reversal thereof in this court, necessarily predicating his claim for reversal upon the theory that he was in fact a citizen of the United States, and that the determination otherwise by the circuit court was wrong. Having become a suitor asking the aid of this court upon that theory, he must maintain some degree of consistency in his position. He should not play fast and loose with this court, nor subsequently assume in solemn and formal proceedings in other courts a position entirely inconsistent with that adopted before us, and entirely inconsistent with the only theory which entitles him to a review of the question involved in his appeal to us. The federal statute *Page 319 which appellant invoked is not an act for the benefit of those who claim that they are in fact citizens and desire to secure record proof thereof. It is, by its express terms, a statute for those who were misinformed as to their citizenship status and for those who presently admit that they have erroneously (although in good faith) exercised the rights of citizenship. When appellant, Reid, elected to proceed under that statute, he admitted, not only by the sworn declarations of the papers he filed therein, but by the very act of proceeding, that he was not in actual fact a citizen of the United States, and that his pre-existent belief that he was a citizen, although a good-faith belief, was a mistaken belief. In other words, by his declaration and conduct, he admitted the truth of one of the ultimate facts adjudicated against him by the circuit court, which adjudication he had been asking this court to review, to wit, the fact that he was not a citizen of the United States. We do not wish to be understood as holding that every subsequent admission or statement by a party pending appeal,, inconsistent with the position he has taken in this court, wherever or however made or evidenced, may be introduced in the record here or considered by this court. Indeed, such will not usually be the case. We do hold, however, that, when an appellant, pending decision of his appeal, of his own motion inaugurates other proceedings in a court of record in this state, which proceedings are maintainable only upon a theory consonant with the correctness of the ruling which he is seeking to review in this court, and when the position necessarily and voluntarily assumed by the appellant in such subsequent independent proceedings so commenced by him is utterly inconsistent with the theory that the determination which he is seeking to review on appeal is wrong, then this court, when such subsequent conduct of the appellant is properly made to appear in its records, will not further examine at his instance or for his benefit the question of the correctness of the determination sought to be reviewed on appeal.
Under the circumstances now appearing in this cause, appellant, Reid, cannot expect this court to do otherwise than he himself has done in the federal court; that is, in substance, to accept as correct the determination of the circuit court that he is not a citizen of the United States. By his subsequent conduct evidenced *Page 320 in the manner and form appearing in this case, appellant will be deemed to have abandoned his appeal (whether intentionally or not) so far as concerns the question of citizenship.
This decision on the citizenship feature, together with the views announced in the foregoing opinion of RUDOLPH, J., as to the right of respondent, Smith, to maintain the action, disposes of all issues in the case, and the judgment and order appealed from are affirmed.
POLLEY, ROBERTS, and WARREN, JJ., concur in both of the foregoing opinions.