Great Falls Nat. Bank v. McClure
| Decision Date | 07 February 1910 |
| Docket Number | 1,717. |
| Parties | GREAT FALLS NAT. BANK et al. v. McCLURE. [d] |
| Court | U.S. Court of Appeals — Ninth Circuit |
Clayberg & Horsky and A. C. Gormley, for appellants.
Ira T Wight and C. E. Pew, for appellee.
Before GILBERT, ROSS, and MORROW, Circuit Judges.
This cause was heard and disposed of in the court below upon the pleadings of the parties, resulting in the sustaining of the complainant's demurrer to the defendants' cross-bill and the awarding to the complainant of the injunction sought by his bill.
The bill of the complainant, who is the appellee here, alleged in effect, among other things, that on December 14, 1901, he commenced an action in the court below against the Diamond R Mining Company to recover judgment for certain moneys advanced by him to that company, in which action he procured a writ of attachment, under which the marshal duly levied upon all of the personal and real property of the Diamond R Mining Company, the same being situate in Cascade county Mont., in which action he recovered judgment on the 16th day of January, 1902, for $86,180 and costs in the sum of $53.30; that in February, 1902, the defendant Great Falls National Bank recovered a money judgment in the district court of the Eighth judicial district of the state of Montana, in and for the county of Cascade, in an action therein pending in which that bank was plaintiff and the Diamond R Mining Company was defendant, and that on the 17th of December, 1904, the defendant American Engineering Works recovered in the same court a similar judgment against the same mining company; that on the 10th day of January, 1907, the complainant caused to be issued out of the court below a writ of execution upon the judgment so recovered by him, which writ directed the marshal of the court to levy upon and sell all of the property of the Diamond R Mining Company found in the district of Montana, and to apply the proceeds thereof, or so much as might be necessary, to the satisfaction of the complainant's judgment, with interest and costs, in pursuance of which writ of execution the marshal duly levied upon all of the property, both real and personal, of the mining company, all of which was situated in Cascade county, and that, after giving due and legal notice of the sale of the personal property, the same was sold to the complainant, he being the highest and best bidder therefor, and that on the 26th day of February, 1907, the marshal, having theretofore given due and legal notice of sale in the manner required by the laws of Montana and by the rules of the court below, sold all of the real property of the mining company so levied upon to the complainant, he being the highest and best bidder therefor, on which day the marshal duly executed to the complainant his certificate of sale of the said real property so sold to the complainant, a copy of which is annexed to the bill; that, no redemption of the property so sold having been made within one year, the marshal on the 27th day of February, 1908, duly executed to the complainant his deed of the said real property in due form, and that the complainant remains the owner and in possession thereof; that on the 25th day of February, 1907, the defendant Great Falls National Bank filed in the court below its bill of complaint against the complainant in the present action, Charles D. McClure, the Diamond R Mining Company, and A. W. Merrifield, United States marshal for the district of Montana, a copy of which bill is annexed to and made a part of the bill in the present suit, upon which bill the bank sought to obtain a decree adjudging that McClure 'waived, abandoned, and lost' whatever lien he may have had or claimed upon the property of the mining company, by reason of his laches and unreasonable delay in enforcing his judgment, and also, in view of certain alleged frauds upon McClure's part, prayed that his aforesaid judgment be decreed to be void as to the bank, that the writ of execution issued thereon be recalled, and that the defendants to the bill be enjoined from selling or disposing of any of the property of the mining company under that writ of execution.
The trial court sustained McClure's demurrer to that bill filed by the Great Falls National Bank, and dismissed it and, the case being brought...
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