Mills v. Provident Life & Trust Co. of Philadelphia

• Decision Date: 05 February 1900
• Docket Number: 540.
• Citation: 100 F. 344
• Parties: MILLS, Sheriff, et al. v. PROVIDENT LIFE & TRUST CO. OF PHILADELPHIA.
• Court: U.S. Court of Appeals — Ninth Circuit

100 F. 344

MILLS, Sheriff, et al. v. PROVIDENT LIFE & TRUST CO. OF PHILADELPHIA.

No. 540.

United States Court of Appeals, Ninth Circuit.

February 5, 1900

John A Parker, John C. Stallcup, and J. W. A. Nichols, for appellants.

P Tillinghast, for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge.

The record shows that neither the Tacoma National Bank nor Otis Sprague is interested in the appeal, and therefore they were not parties to it. Mercantile Trust Co. v. Kanawha & O Ry. Co., 7 C.C.A. 3, 58 F. 6; Railway Co.v.

Pope, 20 C.C.A. 253, 74 F. 1. We are also of opinion that the record as printed is sufficient to present the question as to the jurisdiction of the court below, which question is decisive of the appeal. The motion to dismiss the appeal is therefore denied.

The jurisdictional question appears from the pleadings. The suit was one in equity, brought in the court below by the Provident Life & Trust Company of Philadelphia as complainant, against A. U. Mills, as sheriff of Pierce county, state of Washington, the Tacoma National Bank, C. Anderson, as its assignee, and Otis Sprague. The bill alleges that the complainant is the owner in fee and in the actual possession of certain described lands situated in the city of Tacoma, state of Washington; that the defendants Tacoma National Bank and its assignee, Anderson, claim that the defendant Otis Sprague is the owner of an undivided one-fourth of the premises; that, in an action brought by the Tacoma National Bank against Sprague and others in the superior court of the state of Washington, a judgment was entered in favor of the bank on the 24th day of January, 1894, for the sum of $4,370, and costs of suit, taxed at $28.80, which judgment the defendants claim was thereafter sold and assigned by the bank to the defendant Anderson, on which the assignee, on January 17, 1898, caused to be issued out of the superior court of the state of Washington an execution, which he caused to be placed in the hands of the defendant Mills, as sheriff of the county in which the lands are situated and by him levied upon the property described as the property of the defendant Sprague; that the defendant Mills, as such sheriff, under and pursuant to the writ of execution, issued and caused to be published a notice that on a certain stated day and hour, and at a certain designated place, in the county of Pierce, he will offer for sale and proceed to sell, at public auction, to the highest bidder for cash, all of the said property, or so much thereof as may be necessary to satisfy the said judgment besides all costs interest and accruing costs thereon. The bill alleges that, although the defendants Tacoma National Bank and its assignee, Anderson, claim that the judgment is a lien upon the right, title, and interest of Otis Sprague in the lands, the said Sprague, at the time of the entry of the judgment, had no legal or equitable interest therein, nor has he at any time since had any legal or equitable interest therein, but that at all of the said times the said lands were the property of the complainant, and those through whom it acquired and now holds the title and possession thereof; that the defendant Mills, as sheriff of Pierce county, is now threatening and proceeding to sell, and will, unless restrained by order of the circuit court, proceed to sell, all of the described property, under and pursuant to the said writ and notice, to satisfy the said judgment, interest, costs, and accruing costs, and is further threatening to and will, unless so restrained, proceed to execute and deliver to the purchaser of the property at said sale a certificate of sale therefor, under which the holder thereof will be entitled to be placed by the sheriff in the possession of the property; that the claims of the defendants under the said judgment, and the acts and proceedings done and threatened to be done by the defendants, as aforesaid, under the said judgment and the writ of execution issued thereon, and the sale of the property which the said sheriff is now threatening and proceeding to make under the writ, and, unless restrained, will make, are illegal, wrongful, and unjust, and will cast a cloud upon the title of the complainant to the property, and will greatly depreciate and lessen its value, and, unless a speedy and adequate remedy is granted to the complainant, it will suffer irreparable damage to its peaceable and exclusive possession and enjoyment of the property and its rents; that none of the defendants have any right, title, or interest in any portion of the property, and that their pretensions in that regard are without foundation in right or law; that an emergency exists for the granting of a preliminary injunction enjoining the defendants and those acting under them from selling the said property under the said writ of execution, and from asserting or attempting to enforce any lien or interest in or upon any part of the premises; and the prayer is that upon a hearing the preliminary injunction, which is asked for, be made perpetual, and that it be determined by the court that the defendants have no title, interest, claim, or lien in, to, or upon any part of the premises, and that the title of the complainant thereto is valid.

It will be observed that there is no averment in the bill that there is, or ever was, any cloud upon the complainant's alleged title to the real estate therein described, but that, if the sheriff is permitted to sell the premises under the execution, a cloud will be cast thereby upon the title. It is apparent, we think, that the action was one for injunctive relief, not as an incident to an existing cause in equity, but as the primary object of the action. And so the court below treated it, for it begins its opinion rendered in the cause as follows:

'This is a suit in equity for an injunction to restrain the sheriff of Pierce county from making sale of valuable real estate situated in Tacoma, under an execution to enforce a judgment

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