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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1945
- **Citation:** 326 U.S. 759

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_0312%3A1. Public record. Not legal advice.