Budke v. KAISER-FRAZER COMPANY OF ANCHORAGE

• Decision Date: 10 February 1960
• Docket Number: No. 16354.,16354.
• Citation: 275 F.2d 217
• Parties: John D. BUDKE, Appellant, v. KAISER-FRAZER COMPANY OF ANCHORAGE, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

275 F.2d 217 (1960)

John D. BUDKE, Appellant, v. KAISER-FRAZER COMPANY OF ANCHORAGE, Appellee.

No. 16354.

United States Court of Appeals Ninth Circuit.

February 10, 1960.

Bell, Sanders & Tallman, Bailey E. Bell, James K. Tallman, Anchorage, Alaska, for appellant.

Davis, Hughes & Thorsness, Edward V. Davis, Anchorage, Alaska, for appellee.

Before HAMLEY, JERTBERG and KOELSCH, Circuit Judges.

JERTBERG, Circuit Judge.

Before us is an appeal from an order entered December 10, 1958, by the District Court for the Territory (now State) of Alaska, Third Division. The district court ordered dismissed a certain order issued by that court directed to Northwest Auto Sales, Inc., an Alaska corporation, to show cause why a special execution should not be issued, and certain property situated at Anchorage, Alaska, should not be levied upon and ordered sold by the United States Marshal. Appellant's notice of appeal was filed with the clerk of this Court on December 18, 1958.

Jurisdiction of the district court was conferred by Title 48 U.S.C.A. § 101. Jurisdiction of this Court is based upon Title 28 U.S.C.A. §§ 1291 and 1294, prior to the amendments appearing in Public Law 85-508, 72 Stat. 339. For such amendments see Parker v. McCarrey, 9 Cir., 1959, 268 F.2d 907.

It appears from the record that on September 7, 1954 the Alaska Industrial Board made its decision and award, awarding appellant certain compensation against Kaiser-Frazer Company of Anchorage, an Alaska corporation. On October 11, 1954 said award was confirmed by the District Court for the Territory (now State) of Alaska, and judgment was entered against said corporation in favor of appellant for the sum of $7,200 plus other compensation for temporary disability, for medical, hospital and other treatment and care, the amounts of which have never been liquidated. This judgment was rendered in case No. A-10327, John D. Budke, petitioner v. Kaiser-Frazer Company of Anchorage, defendant. Appellant claims a lien by virtue of such judgment on certain real property situated in Anchorage, Alaska. The decision and order of the district court from which the appeal was taken was predicated in part upon the record in another case in the district court, No. A-9729, entitled First National Bank of Anchorage, a corporation, plaintiff v. Kaiser-Fraser of Anchorage, Inc., Audrey I. Cutting, United States of America, Territory of Alaska, and John D. Budke, defendants. That case was a mortgage foreclosure suit involving the property upon which the appellant claims the existence of the judgment lien. It further appears that Kaiser-Fraser Company of Anchorage acquired title to this property by purchase on January 8, 1952, and on April 20, 1953 said corporation mortgaged the property to the First National Bank of Anchorage, to secure the payment of the sum of $10,000. The debt secured by the mortgage was not paid, and the First National Bank of Anchorage, in cause No. A-9729, foreclosed such mortgage by decree of the court. Under and by virtue of such decree of foreclosure the property was purchased by the Northwest Auto Sales, Inc. The original papers in the foreclosure suit were never forwarded to this Court, and are not included in the record. A copy of the opinion of the district court, dated April 4, 1956 (139 F.Supp. 346), as rendered in the foreclosure suit, appears as an appendix to appellant's brief.

On November 21, 1957, appellant caused to be issued by the district court an execution on the judgment rendered in cause numbered A-10327, which was directed to the United States Marshal of the Territory of Alaska, commanding him to levy upon, seize and take into execution "the personal property of the said Kaiser-Frazer Company of Anchorage in your Division of said District sufficient, subject to execution, to satisfy said judgment, interest and increased interest, costs and increased costs, and make sale thereof according to law; and if sufficient personal property cannot be found, then you are further commanded to make the amount of said judgment, interest, and increased cost out of proceeds of the sale of Lot Four (4) in Block Nineteen (19) of the East Addition to the Original Townsite of Anchorage." The real property is the same real property as that involved in the foreclosure suit in cause No. A-9729. The United States Marshal executed the writ by delivering a copy thereof to an occupant of the property, and noticed the property for sale for the 24th day of February, 1958. In his return of the writ of execution the Marshal stated:

"Further, I received a copy of a Third-Party Claim, in the above-numbered cause, from North West Auto Sales, Inc., on the 4th day of February, 1958.

"Further, on the 5th day of February, 1958, I demanded from the Plaintiff a bond in double the value set by the Third-Party Claimant, and gave said Plaintiff reasonable time to produce said bond.

"Further, Plaintiff failed to produce such a bond; therefore, I cancelled the said Sale, and released said Execution."

Section 55-9-84, Alaska Compiled Laws Annotated 1949 in substance provides that if a third party by affidavit claims title to and states the value of the property levied on under execution the marshal may release the levy unless the plaintiff on demand indemnifies the marshal by bond of two sureties qualifying in double the amount the value of the property. The marshal may retain possession for a reasonable time to demand such indemnity.

On November 7, 1958, appellant moved the district court for an order to be directed to Northwest Auto Sales, Inc., to show cause why a special execution should not be issued and why the real property above described should not be levied upon and ordered sold. In the affidavit in support of the motion for an order to show cause counsel for appellant stated that after the service upon the marshal of the third party claim the...