Sullens & Hoss, Inc. v. Farvour

• Decision Date: 18 January 1954
• Docket Number: No. A-6779.,A-6779.
• Citation: 117 F. Supp. 535
• Parties: SULLENS & HOSS, Inc. v. FARVOUR et al.
• Court: U.S. District Court — District of Alaska

117 F. Supp. 535

SULLENS & HOSS, Inc. v. FARVOUR et al.

No. A-6779.

District Court, Alaska Third Division.

January 18, 1954.

Bailey E. Bell, Anchorage, Alaska, for plaintiff.

Davis, Renfrew & Hughes, Anchorage, Alaska, for assignees, Hugh W. Pruett and Evelyn M. Pruett.

McCARREY, Jr., District Judge.

This cause of action arose upon a lien filed by the plaintiff against property belonging to the defendant, Henry E. Farvour, for building supplies and materials sold by the plaintiff to him between May 1, 1950 and October 9, 1950, and while the defendant made a token payment upon this indebtedness, there is an unpaid remaining balance in the sum of $1,340.82. In compliance with Territorial Law, the plaintiff filed a lien against Lot Eighteen (18) Block Four (4), and Lot One (1) Block Twenty-six (26) Fairview Subdivision Extension, located in Sections Ten (10) and Eleven (11) Township Thirteen (13) North, Range Three (3) West of the Seward Meridian, according to the map and plat thereof on file in the Office of the United States Commissioner, ex-officio Recorder, Anchorage Precinct, Territory of Alaska.

None of the defendants appeared in said action and in due course an order of default was signed and entered against the defendants on the 26th day of June, 1952, and a decree entered accordingly.

Thereafter, a special execution and order of sale was issued on June 27, 1952, upon the above described and liened property and in conformance with said execution and order of sale, notice of marshal's sale was issued on the 30th day of September, 1952.

The files of the case further reveal that on the 30th day of April, 1953, the judgment obtained in this Court was assigned to Hugh W. Pruett and Evelyn M. Pruett in consideration of the sum of $1,851.60, and thereafter, on the 8th day of July, 1953, an execution was issued against Lot 18, Block 4, Fairview Subdivision Extension, located in Sections 10 and 11, Township North, Range 3 West, Seward Meridian, Alaska, toward the satisfaction of such judgment.

On the 3rd day of November, 1953, the assignees, Hugh W. and Evelyn M. Pruett, by and through their attorneys, made a motion upon the Court "for an order amending the description in the judgment entered in the above captioned matter on the 26th day of June, 1952, in respect to the first lot therein described, to the extent and purpose that the description contained in said judgment may read as follows:

"All and the whole of Lot Eighteen (18) in Block Four (4) of the Fairview Subdivision, and Lot One (1) in Block Twenty-six (26) of the Fairview Subdivision Extension, located in Sections Ten (10) and Eleven (11), Township Thirteen (13) North, Range Three (3) West, Seward Meridian, according to the map and plat thereof on file in the office of the United States Commissioner and ex-officio Recorder for the Anchorage Recording Precinct, Alaska."

on the grounds that through inadvertence, clerical error or mistake, the description now reads as if Lot 18 in Block 4 were located in the Fairview Subdivision Extension instead of being located as is in fact the case, in the Fairview Subdivision of the Section, Township and Range therein described.

"This motion is made pursuant to Rule 60 of the Federal Rules of Civil Procedure 28 U.S.C.A. and is based on the affidavit of the plaintiff in the above entitled action, hereto attached and by reference made a part hereof."

In support of said motion, M. W. Hoss, as President of plaintiff corporation, filed an affidavit and set forth, among other things, the following:

"and that your affiant has a full knowledge of the facts surrounding the entry of judgment herein and is acquainted with the facts in respect to the delivery of the materials or rendition of labor which was the basis for the claim of lien mentioned in plaintiff's complaint; that the testimony of your affiant as given in the above captioned matter was, to the best knowledge, information and belief of your affiant, misunderstood or that through other error or omission the description contained in the judgment insofar as it affects the subdivision in which Lot 18 in Block 4 is situated;

"That your affiant knows of his own knowledge that the Subdivision in which Lot 18 in Block 4 is located is the Fairview Subdivision and is not the Fairview Subdivision Extension and that your affiant never at any time knowingly intended to claim a lien on Lot 18 in Block 4 of the Fairview Subdivision Extension but only intended to claim a lien in respect to Lot 18 in Block 4 of the Fairview Subdivision.

"That to the best knowledge and belief of your affiant the Fairview Subdivision Extension lies on the south side of the Palmer Highway, as is reflected by the maps and plats thereof on file in the United States Commissioner's office, and that the Fairview Subdivision lies on the north side of the Palmer Highway, and that the subject matter of the lien involved in the litigation in the above captioned matter was delivered to Lot 18 in Block 4 fronting on Hoyt Street in the Fairview Subdivision, and accordingly there is no question in the mind of your affiant but what the lien, judgment, assignment of judgment and execution should properly be amended to reflect the modification requested in the motion of the assignees hereto attached, and the undersigned affiant joins in the requested modification and consents to a modification of the assignment of

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