5 F.2d 137 (8th Cir. 1925), 6563, Fienup v. Kleinman

Docket Nº:6563.
Citation:5 F.2d 137
Party Name:FIENUP v. KLEINMAN et al.
Case Date:March 30, 1925
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 137

5 F.2d 137 (8th Cir. 1925)




No. 6563.

United States Court of Appeals, Eighth Circuit.

March 30, 1925

Page 138

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

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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...

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