Fernow v. Gubser
| Decision Date | 16 October 1945 |
| Docket Number | 31983. |
| Citation | 162 P.2d 535,196 Okla. 63,1945 OK 265 |
| Parties | FERNOW v. GUBSER. |
| Court | Oklahoma Supreme Court |
Appeal from District Court, Tulsa County; Oras A. Shaw, Judge.
Action by M. H. Watts, as receiver of the Liberty Royalties Corporation, against John Fernow to recover alleged secret profits, wherein E. H. Gubser, trustee in bankruptcy for the Liberty Royalties Corporation, was substituted as plaintiff. From an order confirming a sheriff's sale under an execution based upon a judgment for plaintiff, defendant appeals.
Affirmed.
Syllabus by the Court.
1. On motion to confirm a sale under execution, the court should confine itself to the proceedings of sale and is not to go behind the execution and inquire into how the property come into the hands of a trustee in proceedings in another court.
2. An appeal from an interlocutory order, made in the United States District Court for the sale of property in custody of a trustee in bankruptcy in proceedings for reorganization of the corporation under Section 77B of the Federal Bankruptcy Act, 11 U.S.C.A. § 207, does not transfer jurisdiction over the entire bankruptcy proceedings to the appellate court and does not deprive the bankruptcy court of the power to direct the surrender of the property to the sheriff of the proper county for a sale under an execution issued out of the state court. Fernow v. Liberty Royalties Corporation et al., 10 Cir., 146 F.2d 396.
3. Description of personal property in a notice of sale on execution is sufficient if the property is described with such reasonable certainty as to enable prospective bidders in the exercise of ordinary diligence, to identify it.
W. P. Nelson, A. J. Kriete, and Arch K. Kriete, all of Tulsa, for plaintiff in error.
Paul Pinson and G. C. Spillers, both of Tulsa, for defendant in error.
This is an appeal from an order confirming a sheriff's sale under an execution issued out of the District Court of Tulsa County in the case of E. H. Gubser, Trustee for Liberty Royalties Corporation v. Fernow, No. 52,696 in said district court. That is the same judgment involved in the appeal in 162 P.2d 529, in this Court, this day decided. The question of the validity of said judgment is raised in this appeal. The two cases were consolidated for the purpose of briefing.
What we have said in 162 P.2d 529, supra, is applicable in this case so far as the question of the validity of said judgment is concerned.
The motion for new trial is case No. 52,696 was overruled October 16, 1941. On May 8, 1944, Honorable F. E. Kennamer, U.S District Judge for the Northern District of Oklahoma, entered an order directing E. H. Gubser, Trustee, to deliver to the sheriff of Tulsa County any and all shares of stock, common or preferred, in Liberty Royalties Corporation, belonging to John Fernow, and authorizing said sheriff to sell said stock and apply the proceeds toward liquidation of the judgment in case No. 52,696. The sheriff, upon receipt of said stock, advertised for sale and sold it May 22, 1944, and filed his return May 29, 1944. At said sale, E. H. Gubser, Trustee, became the purchaser. May 31, 1944, the Trustee filed a motion to confirm the sale. July 1, 1944, the judgment debtor, Fernow, filed objections to the confirmation. Hearing was had, testimony and documentary evidence were introduced, after which the court entered an order confirming the sale, and from said order Fernow appeals.
The first objection is that the execution, levy, notice of sale, and return of sale were not issued, levied, given, or returned according to law; that the stock was in the custody of the United States Court through a trustee in bankruptcy of the Liberty Royalties Corporation, having been delivered to said trustee pursuant to notice to stockholders to surrender their stock certificates for verification, and was thereafter fraudulently withheld from defendant by said trustee; and the further objection that on May 8, 1944, the United States District Court made an order authorizing said trustee to deliver said stock to the sheriff of Tulsa County after due levy had been made therefor, but at the time said order was made, the question of the manner of the sale of said stock and what court had jurisdiction thereof was pending on appeal in the United States Circuit Court of Appeals for the Tenth Circuit in 144 F.2d 249, in said court, and for that reason, the order of May 8, 1944 was made without jurisdiction. It is further asserted that the stock was brought within the jurisdiction of the District Court of Tulsa County through fraud or other unjustified acts of the execution creditor; and further objection that prospective bid for the stock was so grossly inadequate as to shock the conscience of the court. On the question of inadequacy of the sale price, there is no evidence as to the value of the stock, and that question is not before us.
On motion to confirm the sale made under execution, the court should confine itself to the proceedings of sale and is not to go behind the execution and look into the regularity of the judgment. Wyant v. Davidson & Case Lbr. Co., 173 Okl. 467, 49 P.2d 151; Burton v. Mee, 152 Okl. 220, 4 P.2d 33; Millard v. Nelson, 139 Okl. 56, 281 P. 238.
Only questions relating or pertaining to the sheriff's sale may be considered on hearing on confirmation of sale. Kline v. Evans, 103 Okl. 44, 229 P. 427; Severson v. Bemore, 137 Okl. 50, 278 P. 327. Under said authorities, the question of how the stock got into the hands of the trustee in bankruptcy and his retention thereof is a question which may not be considered on the motion to confirm the sale.
The record shows that on October 5, 1943, the United States District Court, in the bankruptcy proceedings, entered an order directing the trustee to offer for sale and sell the stock here involved and apply the proceeds toward the liquidation of the judgment theretofore obtained by the trustee against Fernow in case No. 52,696 in the District Court of Tulsa County; that Fernow appealed from said order to the U.S. Circuit Court of Appeals for the Tenth Circuit, being case No. 2903 in that court; that on May 8, 1944, while said appeal was pending, the U.S. District Court issued the order here in question, directing the trustee to deliver said stock to the sheriff of Tulsa County. Fernow also appealed from that order to the Circuit Court of Appeals. It is this order which Fernow now contends was made without jurisdiction.
The reason the court...
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