Brief for the Respondent in Opposition — Sabin v. Home Owners' Loan Corp.

INDEX

Page

SE LET EI IG Rae DO ae Te Ee 1

aE Ba de. Ccwncecunubtie 2

SR EE RE eS aera Se 2

I ee oe a eat aac abana 3

I eer a a, Cee teehee ceca Knee Geum e i 3

IR a aay SOS SE EN OS PRIS eg tae aa eS Ft 6

el a a ee a ee hg eae 8

Re eed cada ie EASE RG ine SORE bee am indmmeaie 9

CITATIONS

Cases:

Sn Wi, OA, BP RU, BE oe oc ee cc ncs cn case chen 7

corey v. crease 21 Cite. TIO... 5 cll 6

Ee eee nee 7

Harper v. Aetna Building & Loan Ass’n, 88 Okla. 128_______ 7

Johnston v. Johnson ,104 Okla. 131_________--__----__-- 6,7

Sabin v. Home Owners’ Loan Corporation, 187 Okla. 504,

certiorari denied, 313 U. 8. 570, rehearing denied, 313 U.S.

601, second petition for certiorari denied, 315 U. S. 800,

rehearing denied, 315 U. 8. 829... .................-.- 3,4

Paeee y. Taewb, at GMA, (O80. occ j

Thompson v. Nickle, 113 Okla. 44. -_...............--.-- 7

Statutes:

12 Okla. Stats. Ann.:

IIc ao cor as ee eo a a ee 9

I SAR Boe ots ee ee ee eee 10

STINE owt oe a oa CAeenae ReAMae 1l

REE AN Aa ae Sea RO Seyret 7, 12

Ynthe Supreme Court of the Winited States

OcToBER Term, 1945

No. 269

Mitton RoE SaBIn AND BEeRTHA FLORENCE SaBIN,

PETITIONERS

v.

Home Owners’ Loan CorpPorRATION, A CoORPORA-

TION; O. K. WetzeL; P. L. Murpuy; A. GARLAND

Marrs, SHERIFF OF TuLsa County, OKLAHOMA;

W.S. Duaarns, Nate Martin, Joan BuRNETT AND

Tom Kiracart, Deputy SHERIFFS OF TULSA

County, OKLAHOMA; CaL CruM, CLERK OF THE

District Court oF Tusa County, OKLAHOMA;

AND JOE Hopases, Doina Business UNDER THE

NAME AND STYLE OF JoE Hopces TRANSFER AND

STORAGE

ON MOTION FOR LEAVE TO PROCEED ON A TYPEWRITTEN

RECORD AND ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE HOME OWNERS’ LOAN CORPORATION

IN OPPOSITION TO THE PETITION FOR A WRIT OF

CERTIORARI

OPINIONS BELOW

The district court wrote no opinion in this case

but its instructions to the jury appear at R. 308-318.

(1)

US ae TF ee TAN ORS I Re ES: aad

ea Pa ee ee

2

The opinion of the Circuit Court of Appeals (R.

399-406) is reported in 147 F. 2d 653. An opinion

of the Oklahoma Supreme Court in an earlier and

related phase of this litigation is reported at 187

Okla. 504.

JURISDICTION

The judgment of the Circuit Court of Appeals was

rendered on February 21, 1945 (R. 407), and a pe-

tition for rehearing was denied on Marck 19, 1945

(R. 435). The time within which a petition for a

writ of certiorari might be filed was extended by Mr.

Justice Rutledge until July 19, 1945, and, on July 13,

1945, Mr. Justice Black granted a further extension

until July 28, 1945. The petition for a writ of

certiorari was filed on July 27, 1945. The jurisdic-

tion of this Court is invoked under Section 240(a)

of the Judicial Code, as amended by the Act of

February 13, 1925.

QUESTIONS PRESENTED

. 1. Whether petitioners may collaterally attack the

“validity of a deed issued to the Home Owners’ Loan

Corporation, pursuant to the order of a state court,

on the ground that, at the time of the issuance of the

_deed, execution was stayed.

2. Whether an alias writ of assistance, under which

the Home Owners’ Loan Corporation was put in

possession of property which was the subject of a

mortgage foreclosure suit, was void because it issued

.out of the state trial court while a petition to recall

the mandate was pending in the state appellate court.

sents TEN ten tae Be BONNE ROE ae

3

STATUTES INVOLVED

The pertinent provisions of the Oklahoma statutes

are set out in the Appendix, infra, pp. 9-12.

STATEMENT

In an action in the District Court of Tulsa County,

Oklahoma, the Home Owners’ Loan Corporation, on

January 10, 1938, secured a judgment on a note

made by petitioners and were granted an order of

foreclosure on the mortgage securing that note

(R. 34, 331-333). A motion for a new trial was

overruled on February 9, 1938, and, on August 8,

1938, an appeal was taken from this judgment but

no supersedeas bond was filed (R. 35, Sabin v.

Home Owners’ Loan Corporation, 187 Okla. 504,

506). In the period that intervened between the

judgment and the perfection of the appeal to the

Supreme Court of Oklahoma, the district court issued

an order of sale (R. 132, 341-342), and the property

was purchased, pursuant to this order, by the

Home Owners’ Loan Corporation. The sale was

confirmed, over the petitioners’ objection, on Sep-

tember 9, 1938. (R. 35, 349-350.) A sheriff’s deed

issued on that date and was delivered (R. 351-352).

Petitioners, having given notice of their intention to

appeal from the order of confirmation, were granted an

extension of time within which to make and serve

case-made and were also granted twenty days within

which to file a supersedeas bond in the amount of

$6500 (R. 350). No such bond was filed, but within

the twenty days, the Supreme Court of Oklahoma

—_— REELED IP RL AEN FLOOD LL AIRE LIE II NM ELE NITE IF Ee IE GM ENN SS PH PORES

4

granted petitioners additional time within which to

file a supersedeas bond, and stayed the execution

of the order of the district court until further order of

the supreme court of the State (R. 136, 375). Peti-

tioners, on February 27, 1939, were granted leave to

file, and did file a supersedeas bond in the amount of

$2000, and further proceedings under the foreclosure

judgment were stayed (R. 132, 344-347). The

Supreme Court of Oklahoma affirmed the foreclosure

judgment and upheld the order confirming the sale

on May 28, 1940. Sabin v. Home Owners’ Loan

Corporation, 187 Okla. 504. A petition for rehearing

was denied on July 16, 1940 (Sabin v. Home Owners

Loan Corporation, 187 Okla. 504), and a petition for

certiorari was denied by this Court. 313 U. 8. 570,

rehearing denied, 312 U. S. 601. The mandate of

the Oklahoma Supreme Court issued to the District

Court of Tulsa County on June 13, 1941 (R. 354).

More than a month after the mandate had been

issued and had been spread on record in the trial

court, an alias writ of assistance was issued (R. 157,

376); by this writ the Sheriff of Tulsa County was

ordered to put the H. O. L. C. in possession of the

property. On July 24, 1941, leave was granted to

the petitioners to file a petition to recall the mandate

and to grant a rehearing, and such petition was filed

(R. 356-359). This petition was denied (R. 385),

and a petition for a writ of certiorari to this Court

was also denied. 315 U. S. 800, rehearing denied,

315 U. S. 829. While the petition asking the Su-

preme Court of Oklahoma to recall its mandate was

—

5

pending, the sheriff, acting through his deputies,

executed the alias writ of assistance by removing the

household furniture, three automobiles, and other

personal property, and by placing the purchaser in

possession (R. 263, 376).

This suit was instituted on July 24, 1943, in the

District Court for Tulsa County, Oklahoma, against

the H. O. L. C.; O. K. Wetzel, an attorney who

represented the H. O. L. C. in the foreclosure pro-

ceedings; P. L. Murphy, an agent of the H. O. L. C.;

Cal Crum, the clerk of the state court who issued the

order of sale (R. 73), a writ of assistance which was

recalled (R. 378), and the alias writ of assistance; the

sheriff and the deputies who took part in executing

the alias writ of assistance; and the owner of the

transfer and storage company that removed the

personal property of the petitioners under the direc-

tion of the sheriff (R. 2-25). Petitioners alleged

that their personal property was removed by the

respondents without any legal right, and that re-

spondents were liable for damages in excess of

$400,000 (R. 2-24). A petition for removal to the

District Court of the United States for the Northern

District of Oklahoma (R. 25-27) was sustained (R.

32), and that court, at the close of the petitioners’

evidence, dismissed the petition as to Wetzel,

Murphy, and Crum (R. 84). At the conclusion of

all of the evidence, the court directed a verdict on

behalf of the H. O. L. C. (R. 290), and submitted

the case of the other respondents to the jury, but

with reference to matters not here involved (R. 313).

6

The jury found for the respondents (R. 81, 82, 319),

and after a motion for a new trial (R. 86-88) was

overruled (R. 90), judgment was entered against the

petitioners (R. 83-85). The Circuit Court of Ap-

peals affirmed (R. 407).

ARGUMENT

1. Petitioners contend that the sheriff's deed to the

H. O. L. C. was void because it was delivered at a

time when the execution of the order of confirmation

had been stayed (Pet. 13-25). Whatever the merits

of petitioners’ view that execution had been stayed

(ef. R. 404-405), it is clear that under the law of

Oklahoma, controlling here, the alleged defect in the

deed will not support the collateral attack on the

H. 0. L. C.’s title and right to possession here

attempted. Christy v. Springs, 11 Okla. 710, 717-

719. While petitioners gave notice of their intention

to appeal the order of confirmation (R. 350), they

do not contend that at the time the deed was exe-

cuted, an appeal had been perfected. Indeed, the

record is barren of any showing as to the time when

the appeal from the order of confirmation was per-

fected (cf. R. 404). Consequently, Johnston v.

Johnson, 104 Okla. 131, particularly relied upon by

petitioners (Pet. 23-24), is inapplicable, for, in that

case, the Oklahoma Supreme Court upheld a collat-

eral attack on the trial court’s possessory order

because it appeared that when the order was issued

an appeal had already been perfected and that the

trial court, therefore, no longer had jurisdiction of the

—

wee

7

cause. The authorities relied on by the court in the

Johnston:case, supra at 133, leave no doubt but that

this was the sole ground for the judgment there

rendered.

2. Petitioners further assert that the alias writ of

assistance, pursuant to which the H. O. L. C. was

put into possession, was void because it issued out of

the Tulsa County district court while a petition to

recall the mandate was pending in the Supreme Court

of Oklahoma (Pet. 25-33). But before the alias

writ of assistance was issued, the mandate of the

Supreme Court had been issued and spread upon the

records of the trial court (see supra, p. 4) and, under

Oklahoma law, it is clear that the trial court had

jurisdiction to make any order or enter any judgment

in the further progress of the cause not inconsistent

with the decision of the Supreme Court. Harper v.

Aetna Building & Loan Ags’n, 88 Okla. 128; Crews v.

Bird, 141 Okla. 143, See also 12 Okla. Stats. Ann. 1941,

Sec. 975, Appendix, infra, pp. 11-12. The jurisdiction

of the trial court is not again divested unless the man-

date is recalled (Brann v. Harris, 173 Okla. 167, 168)

and that was not the case: here.

Indeed, the Supreme Ciourt of Oklahoma has held

that it has no jurisdiction to recall the mandate

unless it clearly appears from the record that it was

issued through fraud, acciident, inadvertence, or mis-

take. Thomas v. Thomas, 27 Okla. 784, 801; see

Thompson v. Nickle, 113; Okla. 44. The denial of

the petition for rehearimg (R. 385) constitutes a

ruling of the Oklahoma Supreme Court, then, that

i

8

it had no jurisdiction over the cause because the

mandate had issued and there was no fraud, accident,

inadvertence, or mistake. The state supreme. court

has “power,” of course, to determine its jurisdiction,

and that determination is controlling here. © Although

they are otherwise distinguishable, cases arising in

éther States or in the federal courts can, for this

reason alone, afford petitioners no aid.

CONCLUSION

The judgment of the court below is correct and

there is no conflict of decisions. Resolution of the

issues in this case turns entirely on Oklahoma law,

and there is no warrant for further review.

The petition for a writ of certiorari should, there-

fore, be denied.

Respectfully submitted.

Harotp Jupson,

Acting Solicitor General.

' Harotp Les, |

General Counsel,

Ray E. DouGHERTY,

Assistant General Counsel,

Home Owners’ Loan Corporation.

SEPTEMBER 1945.