Fienup v. Kleinman

• Decision Date: 30 March 1925
• Docket Number: No. 6563.,6563.
• Citation: 5 F.2d 137
• Parties: FIENUP v. KLEINMAN et al.
• Court: U.S. Court of Appeals — Eighth Circuit

5 F.2d 137 (1925)

FIENUP v. KLEINMAN et al.

No. 6563.

Circuit Court of Appeals, Eighth Circuit.

March 30, 1925.

W. L. Bohnenkamp, of St. Louis, Mo. (George Williams and Oliver Sweet, both of Rapid City, S. D., W. G. Rice, of Deadwood, S. D., and James T. Roberts, of St. Louis, Mo., on the brief), for appellant.

E. W. Fiske, of Sioux Falls, S. D. (Buell, Denu & Philip, of Rapid City, S. D., on the brief), for appellees.

Before SANBORN, Circuit Judge, and TRIEBER and PHILLIPS, District Judges.

SANBORN, Circuit Judge.

This is an appeal from a decree for the defendant Kleinman in a suit by Gustav Fienup to redeem 2,080 acres of his land from a sheriff's sale thereof made on July 15, 1918, under a decree of foreclosure of a mortgage of $17,000 on this land made on December 1, 1914. He gave this mortgage to Elizabeth Dredge, who on May 26, 1915, assigned it to the defendant Kleinman, who brought a suit against Fienup for the foreclosure of it, and on April 6, 1918, obtained a decree that Fienup was indebted to him upon the debt secured by that mortgage in the sum of $21,207.69, and that the land should be sold under the mortgage to satisfy this debt. Under the statutes of South Dakota, where this land is situated, Fienup had the right to redeem from this foreclosure sale, made on July 15, 1918, on or before July 15, 1919, but not later, and, if no such redemption was made, it was the duty of the sheriff to make and deliver his sheriff's deed of the land to the purchaser at his sale immediately after the expiration of the year of redemption.

On July 10, 1919, five days before the expiration of the year of redemption, Fienup brought this suit against Kleinman and Clyde M. Cessna, the sheriff who made the sale. He alleged in his complaint that Kleinman caused a receiver to be appointed and to take possession of 840 acres of the 2,080 acres of this land on April 6, 1918, and that the rents and profits of which he was thereby deprived and the damages resulting to the land therefrom amounted to about $4,000. He alleged that, under a void sheriff's certificate of foreclosure sale under a prior mortgage on 1,240 acres of the 2,080 acres, Kleinman had taken possession of the 1,240 acres, and thereby had become liable to him for rents and profits to the amount of $6,200 and $1,815 damages. He alleged that Kleinman had wrongfully caused him to incur fees for attorneys to the amount of $1,500, and that these rents, profits, damages, and this $1,500 for attorney's fees, aggregating about $14,000, ought to be set off against his indebtedness to Kleinman, and that he ought to be permitted to redeem from the foreclosure sale of the 2,080 acres under the $17,000 mortgage by paying the difference between this $14,000 and the amount of the purchase price of the land at the sheriff's sale. He prayed for an accounting between himself and Kleinman, and that, until the accounting could be had and this difference could be ascertained, Cessna, the sheriff, should be enjoined from executing or delivering his sheriff's deed under his sale of July 15, 1918, under the $17,000 mortgage.

The defendant Kleinman by his answer denied his liability to Fienup on account of the matters set forth in the complaint. The case went to final hearing, at which all the issues were submitted to, heard, and adjudged by the court below. Its decree was to the effect that Fienup, on the accounting he prayed for and obtained, was entitled to recover of Kleinman $3,746.11; that this amount should be and was set off, applied, and credited against Kleinman upon the deficiency on the judgment in the circuit court of Pennington county, S. D., upon the debt secured by the $17,000 mortgage, which deficiency judgment was in favor of Kleinman and against Fienup for $5,459.88, leaving a balance still due under that judgment from Fienup to Kleinman of $1,713.77; and that in all other things set forth in the complaint of Fienup he was entitled to no relief, and regarding those things his suit should be dismissed, and the title to the 2,080 acres should be and it was quieted in Kleinman.

The first and chief objection made to the decree of the court below is that the federal court had no jurisdiction of this case, and that it erred in that it denied the plaintiff's motion to remand it to the state court. A careful examination of the record, however, discloses the fact that, if Fienup ever had the right or privilege to return this case to the state court, he had waived it long before he made his motion to remand. This suit was commenced in the circuit court for the county of Pennington, S. D., on July 10, 1919. Mr. Fienup, the plaintiff, and the defendant Cessna, the sheriff, were citizens and residents of the state of South Dakota, while the defendant Kleinman was a citizen and resident of the state of Minnesota. On August 9, 1919, the defendant Kleinman presented to the state court, on notice to the plaintiff, his petition and bond for a removal of this case to the federal court below, under section 1010, Compiled Statutes, on the ground that there was a controversy in this case which was wholly between himself and Mr. Fienup, citizens of different states, and which could be fully determined between them. On August 9, 1919, the state court accepted his bond and ordered the case removed to the federal court below. The defendant Cessna answered the complaint of the plaintiff on August 16, 1919, and the defendant Kleinman answered it on September 9, 1919.

On November 25, 1919, Fienup applied to and obtained from the federal court below an order on the defendants Kleinman and Cessna to show cause on December 19, 1919, why Kleinman should not be enjoined from applying to Cessna, as sheriff, for, and Cessna should not be enjoined from delivering to Kleinman, the sheriff's deed to which the latter was entitled on the foreclosure sale of July 15, 1918. On December 19, 1919, upon the return of this order to show cause Fienup secured from the federal court below an injunction against the application by Kleinman for and the delivery by Cessna to him of such sheriff's deed, on condition that Fienup within ten days should give bond in the sum of $15,000 to pay certain possible costs, damages, and other amounts that might be due Kleinman on account of his foreclosure judgment in the state court in case the court below ultimately should permit Fienup to redeem therefrom. It was not until after the plaintiff had procured this injunction from the federal court below, nor until more than eight months after the order of removal of this case to that court was made, and on April 24, 1920, that Mr. Fienup made his motion to remand this case to the state court. Never prior to that day had he made any objection to the jurisdiction of the federal court below; never had he made any special appearance therein. Meanwhile he had applied to that court for and obtained from it an order for an injunction. That application was a general appearance by him in that court, and an invocation of the exercise by that court of its general jurisdiction on his behalf, and with his long delay constituted a complete waiver of his right or privilege, if he ever had any, to a remand of this case to the state court and conclusively estopped him from obtaining such relief. 1 Foster Federal Practice (5th Ed.) p. 195, § 61; In re Moore, 209 U. S. 490, 496, 28 S. Ct. 585, 706, 52 L. Ed. 904, 14 Ann. Cas. 1164; Corwin Mfg. Co. v. Henrici Washer Co. (C. C.) 151 F. 938; Philadelphia & Boston Face Brick Co. v. Warford (C. C.) 123 F. 843.

Nor would the plaintiff have been entitled to such a remand if he had presented his motion for it in a manner and at a time when he could have invoked a decision upon its merits. The act of Congress provides that "when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the district court of the United States for the proper district" (Compiled Statutes, § 1010). The controversy in this suit was whether upon any terms the plaintiff at the time he filed his complaint was entitled to redeem the 2,080 acres of land from the sheriff's sale of it under the $17,000 mortgage, and, if he was so entitled, upon what terms a court of equity ought to permit him to make the redemption. He claimed and pleaded that he had the right to make the redemption by paying about $14,000 less than the amount for which the land was sold at the sheriff's sale of July 15, 1918. The removability of this case resolves itself, therefore, into the simple question whether or not the controversy over the plaintiff's claim of his right to redeem and the terms of that redemption exist wholly between the complainant, Fienup, the citizen of South Dakota, and the defendant Kleinman, the citizen of Minnesota, and can be fully determined as between them without danger of loss or injury to the defendant Cessna, the sheriff.

An examination of the complaint and the petition for removal discloses the fact that all the acts and omissions on account of which Mr. Fienup seeks any relief in this suit are the acts and neglects of the defendant Kleinman, and that all the relief he prays for is against him with the single exception that he asks that Mr. Cessna, the sheriff, be restrained from delivering his sheriff's deed under the sale of July 15, 1918, until the final determination of this suit. There was no averment or claim in the complaint that the defendant Cessna either had or claimed any right, title or interest in the property in controversy or in the controversy itself. Cessna was the officer upon whom, under the statutes of South Dakota, the duty was imposed under certain circumstances to make his sheriff's deed, the duty to perform a mere administrative act like the discharge by the clerk of a...