Park v. Conley

• Citation: 202 F. 415
• Decision Date: 06 November 1912
• Docket Number: 3,629.
• Parties: PARK v. CONLEY.
• Court: U.S. Court of Appeals — Eighth Circuit

202 F. 415

PARK v. CONLEY.

No. 3,629.

United States Court of Appeals, Eighth Circuit.

November 6, 1912

Edwin H. Park, of Denver, Colo., pro se.

Archibald A. Lee, of Denver, Colo., for appellee.

Before CARLAND, Circuit Judge, and WM. H. MUNGER, District Judge.

WM. H MUNGER, District Judge.

The facts in this case disclose that William T. Conley, being the owner and holder of a mortgage upon certain real estate owned by one Fred W. Keitel, brought an action to foreclose the same in the United States Circuit Court for the District of Colorado, against said Keitel and Selma Keitel, his wife, and on June 10, 1910, a decree was duly entered, finding that there was due on the notes secured by said mortgage the sum of $2,833.33, and directing that, unless said amount together with costs and an attorney's fee taxed in the sum of $200, be paid within 10 days thereafter, the real estate covered by said mortgage should be sold by a master named in decree, and the proceeds applied in payment of such amount. The decree not having been satisfied by payment, the master, in the manner provided by law, advertised said premises to be sold on the 18th day of August, 1910, and on said day struck off the same to William T. Conley, the plaintiff in the action, for the sum of $250, he being the highest bidder therefor, and the master, pursuant to the order and decree, reported the same to the court. Whereupon on August 25, 1910, the court entered the following order:

'This cause comes on now to be heard, Archibald A. Lee appearing as solicitor for the complainant, and thereupon, on his motion it is ordered by the court that the master's report of the sale of the lands and premises in the decree of foreclosure herein stand in all things approved and confirmed, unless the respondents, or some of them, show cause to the contrary, within eight days after service of a certified copy of this order upon them.'

The record does not disclose that any copy of the order, or even notice of said order, was served upon or given to the respondents, and on September 30, 1910, no objection having been made to the sale, William T. Conley, the complainant and purchaser, applied to the court for leave to increase his bid to the sum of $3,000. The court permitted him, upon such application, to increase his bid to $3,000, and confirmed the sale to him in the sum of $3,000, and directed that the master execute and deliver to him, William T. Conley, upon the expiration of the period of redemption provided for by the statutes of Colorado, unless redeemed within said time, a proper deed of conveyance to said premises. Neither the defendants nor any other person having applied to the court to redeem the premises from said sale, Edwin H. Park, on March 20, 1911, filed a petition in said court, in which among other things, was the following statement:

'Your petitioner further shows that he is a judgment creditor of the respondent, F. W. Keitel, and desires to redeem from said sale and to subject the said property to sale under the judgment of your petitioner; that your petitioner's said judgment was obtained in the district court of the city and county of Denver and state of Colorado. * * * Your petitioner further now tenders into court the sum of money for which said property was sold by the said special master, to wit, the sum of $250, together with interest thereon at 10 per cent. per annum from the 18th day of August, 1910, to the present time, for the purpose of redeeming said lands aforesaid from the said sale so made by the special master aforesaid.'

This petition came on to be heard on March 28, 1911, and the petition of said Park was denied, excepting upon the payment of $3,000, with interest at 8 per cent. per annum from September 30, 1910. Park, declining to pay said amount, his petition was denied, from which order and judgment of the court he brings this appeal.

A single question is presented, to wit: Under the facts as stated,...