Petition for Writ of Certiorari — Sabin v. Home Owners' Loan Corp.

JUL 27 1945

CHARLES ELMORE ORCPLEY

me

In the

Supreme Court of the United States

October Term, 1945

No. 269

Mitton Rog Sasrn and BertHa FLorence Sasi,

Petitioners,

VERSUS

Home Owners’ Loan Corporation, a Corporation, BT aL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE TENTH CIRCUIT, AND BRICF

IN SUPPORT THEREOF

Hersert K. Hype,

406 Perrine Building,

Oklahoma City, Oklahoma,

Attorney for Petitioners.

Lez Wi1aMs,

406 Perrine Building,

Oklahoma City, Oklahoma,

Of Counsel.

July, 1945.

KING LAW BRIEF Co., 418 N.W. Third, Oklahoma City—Phone _ 3-2969

INDEX

PAGE

Petition for Writ of Certiorari ...................--- 2-10

A. Summary Statement of the Matter Involved —_-__--- 2

Authority: —

Sabin v. Home Owners’ Loan Corporation, 187 Okla.

Se: a aa ae ann ae 2

Sabin v. H. O. L. C., Mem. 315 U. 8S. 800, 62 Sup. Ct.

625, 86 L. ed. 1201 ___._- SSA h Pe PARE Oa en PRD 4

B. Basis of Jurisdiction of This Court --.---._..---.__ 5

Authority: —

SaT ee. tees Gee 00. ©. A. BB ccc 5

Section 347(a), U. S. C. A. (Jud. Code #240 as

I icine tiie tcc nsnne 6

eee. Ge, ees SOM, WG Be ian 6

C.. Geeeiaein FAURE ..< a eh eel 6

D. Reasons Relied On for the Allowance of the Writ __. 7

Authority: —

Anthony v. Janssen, 183 Cal. 329, 191 Pac. 538 ______ 8

Board of Regents v. Linscott, 30 Kan. 241, 1 Pac. 81,91 7

Brauns v. Donahoe, 127 Okla. 33, 259 Pac. 541 ______ 7

Chicago, G. W. R. Co. v. Basham, 249 U. S. 164,

63 L. ed. 534, 30 Sup. Ct. Rep. 213 _.._......._... 8

Egbert v. St. Louis, S. F. R. Co., 50 Okla. 623, 151

Ehrig v. Adams, 67 Okla. 157, 169 Pac. 645

Fariss v. Deming Investment Co., 5 Okla. 496, 50

Goldstern v. Gavin, 187 Okla. 338, 102 Pac. (2d) 582 __

In re Worley, 50 Fed. Supp. 611

u

PAGE

Warren v. Territory of Hawaii, 119 Fed. (2d) RS

Title 12, Section 971, Okla. Stat. 1941 (Section 546,

Okla. Stat. 1931 --------------------- licensed

Prayer for Writ ------------------------~ PEE SR RS

Brief in Support of Petition for Rehearing ---------- 11-34

ii 11

Authority: —

187 Okla. 504, 105 Pae. (2d) OOF een ono 12

147 Fed. (2d) 653 (C. C. A. 10) -------------------- 12

Pie ooo. 5 9 12

Authority: —

Title 28, Section 347 (a), U.S. C. A. (Jud. Code #240,

as amended) ---------------------- " davedieiabachs

Statement of the Case --------------------——- 12

Specification of Wrrots —.-------------------—----— 13

ER ent ean 13

I. The sheriff’s deed was void .-----~--------------- 13

Authority: —

Anthony v. Janssen, 183 Cal. 329, 191 Pac. 538 ------- 21

Bernal v. Bleim, 33 Cal. 668 --------------------~~ 21

Board of Regents v. Linscott, 30 Kan. 240, 1 Pac. 81,91 20

Brauns v. Donahoe, 127 Okla. 33, 259 Pac. 541, 542 _.. 22

Byrd v. State, 99 Okla. 165, 226 Pac. 362 ..---------- 20

Clark v. Strohbeen, 190 Towa 989, 181 N. W. 480,

13 A. L. R. 1419 ------------ CR TERE:

Conner v. Long, 63 Iowa 295, 19 N. W. 221 ---------- 21

Dakota Investment Co. Vv. Sullivan, 9 N. D. 303,

@1 Am. St. Rep. 584 ---------------------------~ 14

Draper v. Davis, 102 U. S. (12 Otto) 370, 96 L. ed. 121 22

Dulin v. Pacific Wood & Coal Co., 98 Cal. 306, 33

beet

PAGE

Ford v. Nokomis State Bank, 135 Wash. 37, 237

Pint, S246 ncn ckinwiene-s= ala eat anemia enemas

Frensley v. Frensley, 173 Okla. 321, 49 Pac. (2d) 731 —-

Gardner v. Continental Ins. Co. (Ky.) 101 Ss. W.

911, 912 ....--~.---.--- ce a 5 peeiead

Goldstern v. Gavin, 187 Okla. 338, 102 Pac. (2d) 582 --

Gorham v. Wing, 10 Mich. 486 ---------------------

Gray v. C. A. Harris & Son, 200 Wash. 181, 93

Pac. (2d) 385 ~----------------------------------

Gross v. Fowler, 21 Cal. 392 ----------------------

Hall v. Yoell, 45 Cal. 584 --------------------------

Hammond v. Cailleand, 111 Cal. 206, 52 Am. St.

Rep. 167 ...---.----------------------------—"—-

Harness v. Myers, 143 Okla. 147, 288 Pac. 285 ~-----

Henrietta Min. ete. Co. v. Gardner, 19 Sup. Ct. 327,

173 U. S. 123, 43 L. ed. 637 --.-------------------

Hey v. Harding (Ky), 78 S. . Sy paneer

Howe v. Farmers & Merchants Bank, 155 Okla. 284,

8 Pac. (2d) 665 ~--------------------------------

In re Worley, 50 Fed. Supp. 611 (D. C. Nebr.) ------

Johnston v. Johnston, 104 Okla, 131, 230 Pac. 700 ~---

Koehler v. Ball, 2 Kan. 160, 83 Am. De: GR Wn n-s-

Local Bldg. & Loan Assn. V. Hall, 145 Okla. 206,

999 Pac. 68 ..---------------------------------—-

McCourt v. Singers-Bigger, 159 Fed. TP: conn

Moore v. Martin, 38 Cal. 428 ~.--------------------

Morrison v. Burnett, 154 Fed. 617 ----------------

Opinion of the Circuit Court of Appeals in This Case -

Philadelphia Mtg. & Tr. Co. v. Gustus, 55 Nebr. 485 —-

Runyon v. Bennett, 34 Ky. (4 Dana) 598, 29 Am.

Than, OP. onic enn een enone nnn eaane

Sabin v. H. O L. C., 187 Okla. 904, 105 Pac. (2d) 245

State Natl. Bank v. Neel (Ark.), 122 Am. St. Rep. 185

Thompson v. Smith, 102 Okla. 150, 227 Pac. 77 ~-----

Vann v. Union Central Life Ins. Co., 79 Okla. 17,

191 Pac. 175 -------------------------------—--———

20

24

19

20

21

IV

PAGE

Wauchope v. MeCirmick, 158 Mo. 660, 59 S. W. 970 -- 14

Westerfield v. South Omaha Loan & Bldg. Co., 80

Nebr. 806, 115 N. W. 305 ------------------------ 22

Whitney v. Fox, 17 Sup. Ct. 713, 166 U. S. 637,

6) L. ed. 1145 ..-...--~.------------------------ 20

Willis v. Eastern Trust ete. Co. 18 Sup. Ct. 347,

169 U. S. 295, 42 L. ed. 752 ---------------------- 20

Section 424, O. S. 1931 ---------------------------- 14

Section 456, O. S. 1931 ~--------------------------- 13

Section 457, O. S. 1931 ---------------------------- 14

Section 546, O. S. 1931 ---------------------------- 15

12 Okla. Stat. 1941, Section 971 (O. S. 1931, See. 546) 15

Il. The writ of assistance was void because issued by

a court without jurisdiction ~--------------------- 25

Authority: —

American Inv. Co. v. Wadlington, 122 Okla. 56, 250

Bee O08 |. = -- 25

Baggs v. Smith, 53 Cal. RCS aetna ae ene ee area 27

Baker v. Borello, 131 Cal. 615, 63 Pac. 914 ---------- 27

Blake v. Miller, 118 Tl. 500, 8 N. E. 828 ------------ 27

Board of Commrs. v. Baxter, 113 Okla. 280, 241 Pace. 752 25

Brann v. Harris, 173 Okla. 167, 47 Pace. (2d) 876 __ 28, 32

Chicago, G. W. R. Co. v. Basham, 249 U. S. 164,

63 L. ed. 534, 39 Sup. Ct. 213 -------------------- 30

Dooley v. Foreman, 94 Okla. 163, 221 Pac. 47 ----- ike

Egbert v. St. Louis, S. F. R. Co., 50 Okla. 623,

151 Pac. 228 ~..--------- an adalenciege aah neni seach ae

Ehrig v. Adams, 67 Okla. 157, 169 Pac. 645 --._-- ae

Henderson v. Pebworth, 107 Okla. 238, 932 Pac. 74 --- 28

In re Bullard’s Estate, 3 Cal. Unrep. 688, 31 Pac. 1119 27

Keyser v. Farr, 105 U. S. 265, 26 L. ed. 1025 -------- 27

Ladd et al. v. Couzins, 35 Mo. 513 ------------------

McKee v. Thornton, 81 Okla. 261, 198 Pac. 303

Ott v. Boring, 131 Wis. 472, 110 BH. W. G86 2-25 --

v

PAGE

Sabin v. H. 0. L. C., No. 786, Mem., 315 U. S. 800,

tae. 0. G05, O80 1, od: 190 22 ees 33

St. Paul Fire & Marine Ins. Co. v. Peck, 40 Okla. 396,

Be EES so ebncthdsaneseuebicn baie 28

Shay v. Chicago Clock Co., 111 Cal. 549, 44 Pac. 237 __ 27

Simmons v. Harris, 108 Okla. 189, 235 Pac. 508 _-_--- 28

Thomas v. Thomas, 27 Okla. 801, 109 Pac. 825,

RES Pts Ne ik ic Sa A ane ee tenes 27

Thompson v. Nickle, 113 Okla. 44, 239 Pac. 649 __-___ 28

Warren v. Terr. of Hawaii, 119 Fed. (2d) 936

Rs Bic BD Siena ea pc enaeecinpehtind deemed niece 30

Western Wheel Scraper Co. v. Drinnen (D. C. IL),

Be I ier 6p eakcdhe pee eds 27

CII ads on 5nd, cae nied ane 33

AT a eens I-VI

Order Approving Sheriff’s Sale of Real Estate __._____ I

Oklahoma Statutes 1931 ___- RR ae eS RS ca Meher ON Ill

Section 456 _-._.-_-_.. as Dicvniniabin eabtalie ede airkiavincesice Ill

SRN Sea mes Spans Dnakibicish bine hae anid III

TT TI ae irra eee cighgeitiones IV

NS ERT RGR See RT Ov ieee nN ARNE SP PPR, APC oe AVR ST V

In the

Supreme Court of the United States

October Term, 1945

No.

Mutton Rog Sasin and BertHa FiLorENcE Sasin,

Petitioners,

VERSUS

Home Owners’ Loan Corporation, a Corporation ;

O. K. Werzet; P. L. Murpuy; A. Gartanp Marrs,

Sheriff of Tulsa County, Oklahoma; W. S. Ducaerns,

Nate Martin, Jonn Burnett and Tom Kirxeart,

Deputy Sheriffs of Tulsa County, Oklahoma ;

Cat Crum, Clerk of the District Court of Tulsa

County, Oklahoma ; and Joz Hones, doing business

under the name and style of Jor Hopces TRansFER

AND STORAGE.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE TENTH CIRCUIT, AND BRIEF

IN SUPPORT THEREOF

PETITION FOR WRIT OF CERTIORARI

2 Sasrn v. H. O. L. C. eT AL.

May It Please The Court:

The petition of Milton Roe Sabin and Bertha Florence

Sabin, petitioners, respectfully shows to this Honorable

Court:

A.

Summary Statement of the Matter Involved

January 10, 1938, judgment was entered in the District

Court of Tulsa County, State of Oklahoma, in favor of the

Home Owners’ Loan Corporation and against petitioners,

foreclosing a mortgage on petitioners’ home (R. 130, 331).

Appeal from that judgment was perfected to the Supreme

Court of the State of Oklahoma on August 8, 1938 [Sabin v.

Home Owners’ Loan Corporation, 187 Okla. 504, 105 Pace. (2d)

245].

Meantime, the judgment of foreclosure not having been

superseded, and being unpaid, an order of sale was issued

on July 18, 1938 (R. 132, 341).

Sale of petitioners’ property having been had under

that order of sale, and the Home Owners’ Loan Corporation

being the purchaser, the sale was confirmed by the District

Court of Tulsa County, Oklahoma, on September 9, 1938

(R. 132, 349; Appendix I-III). This order of confirmation

directed the Sheriff of Tulsa County, Oklahoma, to make

and execute a deed to the purchaser, and that the clerk of

said court issue a writ of assistance to the sheriff of said

county directing him to put the purchaser in possession.

These petitioners having given notice of appeal from said

order of confirmation, the court extended the time for

Per. ror Writ or CERTIORARI AND BRIEF 3

making and serving case-made, and, in accordance with the

provisions of the statute (Section 546, Okla. Stat. 1931,

Appendix V), allowed these petitioners twenty days within

which to file a supersedeas bond in the sum of $6,500.00.

On the same day, September 9, 1938, the sheriff executed

and delivered to the Home Owners’ Loan Corporation a

deed to said property (R. 132, 351).

A new appeal was immediately perfected by petitioners

to the Supreme Court of Oklahoma from the order of con-

firmation (Sabm v. H. O. L. C., supra; see also, R. 97, 158,

309); and, petitioners believing the amount of supersedeas

bond fixed by the lever court in its order of confirmation to

be excessive, asked the appellate court to fix the amount of

such bond, and that Court, on September 26, 1938, entered

an order staying execution in the lower court until further

order of the appellate court (R. 136, 375).

Notwithstanding, the H. O. L. C. had a writ of assistance

issued by the lower court on December 3, 1938, which was

recalled on December 15, 1938, by order of its attorney

(R. 176, 378).

After some controversy in the appellate court as to the

amount of supersedeas bond, it was finally fixed at $2,000.00,

and a bond was filed in that Court and approved, on Febru-

ary 27, 1939 (R. 132, 344).

An opinion was rendered by the Supreme Court of the

State of Oklahoma on May 28, 1940 (Sabin v. H. O. L. C.,

supra.), and on June 13, 1941, a purported mandate from

the Supreme Court of the State of Oklahoma (R. 132, 354),

4 Saprn v. H. O. L. C. BT aL.

undated and claimed to be otherwise defective, was filed in

the District Court of Tulsa County, Oklahoma.

On July 21, 1941, the Home Owners’ Loan Corporation

filed in the District Court of Tulsa County, Oklahoma, an

application for an alias writ of assistance (R. 239, 384), and

thereupon a purported alias writ of assistance was issued by

the clerk of said court (R. 157, 376).

On July 24, 1941, petitioners filed in the Supreme Court

of the State of Oklahoma, with leave of that Court granted

at a time when the Home Owners’ Loan Corporation was

represented by counsel there present (R. 147, 179, 180), a

petition to recall mandate and grant a rehearing (R. 134,

356) ; notice of which was given to the sheriff of Tulsa County,

Oklahoma, on July 25, 1941 (R. 149, 236, 379).

On July 26, 1941, the sheriff executed the writ of assist-

ance (R. 157, 376) by removing all of petitioners’ household

furniture, personal effects, automobiles and other property,

and placing the Home Owners’ Loan Corporation in posses-

sion.

Petitioners’ petition to recall mandate and grant a

rehearing was not finally denied by the Supreme Court

of the State of Oklahoma until September 5, 1941 (R. 288,

385), and a writ of certiorari was denied by this Court on

February 5, 1942 (Sabin v. H. O. L. C., Mem. 315 U. 8. 800,

62 Sup. Ct. 625, 86 L. ed. 1201). No further proceedings have

been had in the Supreme Court of the State of Oklahoma

since that time, and no further mandate has issued from that

Per. ror Writ or CertTiorarI AND Brier 5

Court to the District Court of Tulsa County, Oklahoma

(R. 135, 373).

This action was filed by petitioners on July 24, 1943,

in the District Court of Tulsa County, Oklahoma, against

all persons concerned in the execution of the alias writ of

assistance and the eviction of petitioners from their home,

to recover damages in excess of $400,000.00 for the alleged

wrongful eviction of petitioners (R. 2-25).

The action was removed to the District Court of the

United States for the Northern District of Oklahoma (R. 33),

where it was tried on February 22, 1944 (R. 92), and at

the close of the evidence of petitioners the case was dis-

missed by the Court as to the defendants Wetzel, Murphy

and Crum (R. 253), and at the conclusion of all the evidence

the court instructed the jury to return a verdict in favor

of the Home Owners’ Loan Corporation (R. 314), and sub-

mitted the case to the jury as to the other defendants only

upon their acts in connection with an adjoining lot not here

now involved.

B.

Basis of Jurisdiction of This Court

Petitioners appealed from the judgment of the District

Court of the United States for the Northern District of

Oklahoma to the Cireuit Court of Appeals for the Tenth

Cireuit, and that Court rendered judgment affirming the

District Court on February 21, 1945 (R. 407). The opinion

of the Cireuit Court of Appeals (R. 399) is reported in

147 Fed. (2d) 653.

6 Sasrn v. H. O. L. C. BT AL.

Petition for rehearing was filed by petitioners (R. 408),

and was denied by the Cireuit Court on March 19, 1945

(R. 435).

On June 14, 1945, within the three months allowed by

statute (Title 28, Section 350, U. S. C. A.) for filing petition

of certiorari in this Court, J ustice Rutledge of this Court

extended the time for filing such petition until J uly 19, 1949,

and before the expiration of that time and on July 13, 1945,

Justice Black further extended the time therefor until

July 28, 1945, and this petition is presented and filed within

such extended time.

Jurisdiction is conferred upon this Court by Title 28,

Section 347(a), U. S. C. A. (Jud. Code #240, as amended)

to require by certiorari that said cause be certified to this

Court by the Circuit Court of Appeals for the Tenth Circuit

for determination by this Court.

Cc.

Questions Presented

1. Whether petitioners were denied due process of law

by being evicted from their home under a writ of assistance

issued to place in possession one claiming title under a

sheriff’s deed made and executed at a time when execution

was stayed.

2. Whether petitioners were denied due process of law

by being evicted from their home under a writ of assistance

issued out of the District Court of Tulsa County, Oklahoma,

at a time when the Supreme Court of the State of Oklahoma

—

Per. ror Writ or Certiorari AND Brier 7

had re-assumed and had sole jurisdiction of the case in which

such writ of assistance was issued.

D.

Reasons Relied On for the Allowance of the Writ

The Circuit Court of Appeals held (R. 404) that further

execution under the order confirming sale was stayed for

a period of at least twenty days, as provided by the order

(Appendix I-III), under the provisions of Title 12, Sec. 971,

Okla. Stat. 1941 (Section 546, Okla. Stat. 1931, Appendix V) ;

but at the same time held that the sheriff’s deed executed

and delivered during that twenty-day stay period was not

thereby rendered void. This decision decides an important

question of local law in a way probably in conflict with

applicable local decisions, particularly the decision in Gold-

stern v. Gavin, 187 Okla. 338, 102 Pac. (2d) 582, in which case

the principle was laid down that title to property remained

in the defendant until confirmation of sale; also the decision

in Fariss v. Deming Investment Co., 5 Okla. 496, 50 Pac. 130,

in which it was held that supersedeas cannot be ignored or

an execution issued as long as it remains on record until its

effect has been tested by direct attack; also the decision in

Brauns v. Donahoe, 127 Okla. 33, 259 Pac. 541, which case

holds that a supersedeas bond given to stay execution on

an order confirming sale is for the purpose of covering

damages, among other demages, caused by reason of delay

in obtaining sheriff’s deed. It likewise conflicts with the

great weight of authority in a question of general law, par-

ticularly the decision in Board of Regents v. Linscott,

—

8 Sastry v. H. O. L. C. ET aL.

30 Kan. 241, 1 Pac. 81, 91, holding that a sheriff’s deed is

required to vest title, and Anthony v. Janssen, 183 Cal. 329,

191 Pac. 538, and In re Worley, 50 Fed. Supp. 611, which

cases hold that a sheriff is without lawful power or authority

to execute a deed at a time when 9n order of confirmation

has been stayed. The decision therefore operates to sanction

the deprivation of petitioners’ property without due process

of law.

The Cireuit Court of Appeals held that by the Supreme

Court of the State of Oklahoma granting leave to petitioners

to file in thet Court a petition to recall mandate and grant

a rehearing, and considering such petition, jurisdiction of

the case was not re-assumed by that Court so as to deprive

the District Court of Tulsa County, Oklahoma, of jurisdiction

to proceed with an execution in the ease at the same time

such petition was being considered in the appellate court

(R. 405). This decision of the Circuit Court of Appeals

is contrary to the decision of this Court in Chicago G. W. R.

Co. v. Basham, 249 U. S. 164, 63 L. ed. 534, 39 Sup. Ct. Rep.

213, in which case this Court laid down the principle that

while a judgment was being considered by a state court of

last resort upon a petition for rehearing the litigation is not

brought to a conclusion in that Court until such petition

is disposed of by it. The decision is likewise in conflict with

the decision of the Circuit Court of Appeals for the Ninth

Circuit in Warren v. Terr. of Hawaii, 119 Fed. (2d) 936,

holding that the entertainment by a court of appeals having

power to recall a mandate but not having recalled it, of

Per. ror Writ or CERTIORARI AND BRIEF g

a petition for rehearing, amounts to a re-assumption of juris-

diction of the case by the appellate court. The decision like-

wise probably conflicts with the decision of the local court

in Ehrig v. Adams, 67 Okla. 157, 169 Pac. 645, in which case

the Supreme Court of Oklahoma recalled a mandate, granted

a rehearing, and rendered an opinion directly contrary to

its original opinion; and with the decision in Egbert v.

St. Louis & 8S. F. R. Co., 50 Okla. 623, 151 Pac. 228, holding

that no two courts can have jurisdiction of the same cause

of action at the same time. It likewise conflicts with the great

weight of authority in a question of general law, particularly

the cases cited in the Egbert case, supra, to the same effect

as held in that case. The decision therefore operates to

sanction the deprivation of petitioners’ property without due

process of law.

Prayer for Writ

Wherefore, your petitioners respectfully pray that a writ

of certiorari be issued out of and under the seal of this

Honorable Court, directed to the United States Circuit Court

of Appeals for the Tenth Circuit, commanding that Court to

certify and to send to this Court for its review and determin-

ation, on a day certain to be therein named, a full and com-

plete transcript of the record and all proceedings in the case

numbered and entitled on its docket, ‘‘No. 3063, Milton Roe

Sabin and Bertha Florence Sabin, Appellants, v. Home

Owners’ Loan Corporation, a corporation, O. K. Wetzel,

P. L. Murphy, A. Garland Marrs, Sheriff of Tulsa County,

Oklahoma, W. S. Duggins, Nate Martin, John Burnett and

Be

Tom Kithcart, Deputy Sheriffs of Tulsa County, Oklahoma,

Cal Crum, Clerk of the District Court of Tulsa County,

Oklahoma, and Joe Hodges, doing business under the name

10 Sasrn v. H. O. L. C. eT AL.

and style of Joe Hodges Transfer and Storage, Appellees ;’’

and that said judgment of the United States Circuit Court

of Appeals for the Tenth Circuit may be reversed by this

Honorable Court, and that your petitioners may have such

other and further relief in the premises as to this Honorable

Court may seem meet and just.

Miron Rog Sasrn and

BertHa FLORENCE SaBin,

Petitioners.

Hersert K. Hype,

Attorney for Petitioners.