Morrison v. Burnette

Citation154 F. 617
Decision Date10 July 1907
Docket Number2,529.
PartiesMORRISON et al. v. BURNETTE et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

(Syllabus by the Court.)

An appellate court will notice without objection or assignment the lack of jurisdiction of an inferior court.

But alleged errors in the exercise of its jurisdiction can be presented only by appeal or writ of error and a proper assignment of errors. Cross-errors are not judicable in a federal appellate court.

A bill of exceptions has no function and is unnecessary in an equity proceeding in the absence of a trial of some issue by a jury because the appeal brings the entire record, including the evidence, objections, and exceptions, to the appellate court.

Appeals to the Court of Appeals of the Indian Territory from orders judgments, and decrees of the trial courts made in the exercise of their probate jurisdiction must be taken, and the practice therein is governed. by the method of taking and the practice in appeals from the Circuit Courts to the Circuit Court of Appeals of the Eighth Circuit (Act March 3, 1905, c 1479, Sec. 12, 33 Stat. 1081 (U.S. Comp. St. Supp. 1905, p. 150)), and not by sections 1385, 1386, Mansf. Dig. Ark.

Leases of allotments of Indian minors in the Indian Territory, confirmed and approved by the trial courts of that territory since April 26, 1906, are not subject to the approval or disapproval of the Secretary of the Interior, but the orders of the courts confirming and approving them are final.

A decision which completely determines the rights of parties in the pending proceeding, who are not jointly liable with others, is a final decision, reviewable by appeal or writ of error under the acts of Congress.

An order which avoids a confirmation of a sale and an approval of a lease of an allotment of an Indian minor is a final decision, because it completely determines the right of the purchaser thereunder.

The general rule that the courts have power over their judgments, decrees, and orders during the term at which they are rendered does not give them jurisdiction to avoid confirmed judicial sales without cause at the term at which they are confirmed, because the rights of purchasers vest thereunder upon confirmation.

The only effect of this rule on such sales is to enable the courts to consider alleged causes for avoiding them during the term on motions or orders to show cause upon due notice, without the filing of formal bills for that purpose.

A successful bidder under an order or decree of court at a sale which is subject to confirmation by the court is a purchaser from the announcement of the sale to him by the officer, and may thereafter be compelled to complete his purchase.

Before confirmation a sale will not be set aside for mere inadequacy of price, unless it is very great; yet, if the inadequacy be great, slight circumstances of unfairness in the conduct of the party benefited will be sufficient to open it for farther bids.

After confirmation of a judicial sale the rights of the purchaser have vested. Neither inadequacy of price, nor offers of higher prices, nor anything but fraud, mistake, accident, or some other cause for which equity would avoid a like sale between private parties, will warrant a court in avoiding the sale or in opening it for other bids.

Pursuant to an order of the United States Court in the Western District of Indian Territory, which has the jurisdiction of a probate court, a lease of 160 acres of mineral land which had been allotted to Edith Durant, a minor Indian, was advertised for sale on sealed bids by Monday Durant, her guardian, and on the day of sale, March 5, 1906, the highest bonus bid for it was $3,490, and this bid was made by Robert W. Morrison, Charles W. S. Cobb, John E. McKinney, William J. Breene, and Frank M. Breene, who are now the appellants in this case, and will hereafter be so styled. The Laurel Oil & Gas Company, a corporation, one of the appellees, bid at the same time at this sale $2,850 for this lease. On March 7, 1906, the appellants deposited the $3,490 with the court, and on March 9, 1906, the guardian executed the lease of the land to the appellants, and they applied to the court for the confirmation of the sale and the approval of the lease. After notice to all parties in interest, and a hearing, the court on June 11, 1906, 'ordered, adjudged, and decreed that the lease executed by Monday Durant, guardian of Edith Durant, minor, on the 9th day of March, 1906, (to the appellants) be, and the same is hereby, in all things approved, ratified, and confirmed. ' On the next day the Laurel Company, the unsuccessful bidder at the former sale, made a motion for leave to bid again for the lease of this land, and offered to bid a bonus of $8,000. Thereupon the court set aside the order of June 11, 1906, for the sole reason that a higher bonus could be obtained, and on June 14, 1906, it sold a lease of 80 acres of this land on the same terms as the former to the Galbraith Oil & Gas Company for a bonus of $16,800 and a lease of the other 80 acres on the same terms to the Laurel Oil & Gas Company for $2,000. The leases to these parties were subsequently made by the guardian, and the court confirmed these sales and approved these leases. The appellants then sued out a writ of error from the Court of Appeals of the Indian Territory to reverse the order which set aside the decree of confirmation of the sale and of approval of the lease to them, and they also appealed from that order. The Court of Appeals of the Indian Territory consolidated the two cases, heard them as an appeal in equity, and affirmed the order below, because the court was evenly divided in opinion. The appellants have brought the latter judgment here by writ of error, and also by appeal.

Since the case came to this court the controversy over the 80 acres leased to the Galbraith Oil & Gas Company has been settled, and the only dispute remaining relates to the 80 acres leased to the Laurel Oil & Gas Company under the second lease.

W. J. Breene and J. J. Shea (W. B. Homer and Edmond C. Breene, on the brief), for appellants.

George A. Murphey (William T. Hutchings and William P. Z. German, on the brief), for appellees.

Before SANBORN and HOOK, Circuit Judges, and PHILIPS, District Judge.

SANBORN Circuit Judge, after stating the case as above, .

As this is a proceeding in equity, the writ of error must be dismissed, and the case must be considered and decided upon the appeal, and it is so ordered.

The real question in the case is: May a court of equity, during the term at which the confirmation is made, lawfully avoid an executed judicial sale which it has confirmed, on the sole ground that a larger price may be obtained by a second sale?

Before entering upon the consideration of this question some preliminary objections must be considered. Counsel for the appellees insist that this issue is not within the jurisdiction of this court (1) because the writ of error issued by the Court of Appeals of the Indian Territory to the trial court was not allowed by any judge of the former court or by the trial judge; (2) because the petition for the writ of error and the assignment of errors thereon show no filing marks; and (3) because the assignment of the errors of the trial court was not filed until 36 days after the appeal was taken. And they cite U.S. v. Goodrich, 54 F. 21, 4 C.C.A. 160, and Flahrity v. Union Pac. Ry. Co., 56 F. 908, 6 C.C.A. 167. But these objections do not assail the jurisdiction of the Court of Appeals of the Indian Territory, for this is a proceeding in equity reviewable by appeal, an appeal was taken, and that court had ample power to hear and decide the merits of the cases upon that appeal, either upon an assignment of errors filed out of time or without any assignment whatever. A hearing on an assignment filed too late may have been error, but it was not jurisdictional error. It related merely to the method of the exercise by the appellate court of its undoubted power, and not to its total want of jurisdiction, and hence it is reviewable in this court only upon an appeal and a proper assignment of errors. Rogers v. Penobscot Mining Co., 154 F. 606, decided at this term. The appellees have taken no appeal, and they cannot invoke the jurisdiction of a federal appellate court to consider or decide questions of this nature by an assignment or by an argument of cross-errors. Guarantee Co. v. Phenix Ins. Co., 59 C.C.A. 376, 379, 124 F. 170, 173.

Another objection is that the record contains no bill of exceptions. But no bill of exceptions is requisite in a proceeding in equity, because the appeal brings the entire record to the appellate court. Dodge v. Norlin, 66 C.C.A. 425, 431, 133 F. 363, 369; Teller v. U.S., 49 C.C.A. 263, 111 F. 119.

Counsel argue that the appeal in this case was not taken in accordance with the method prescribed by Mansfield's Digest of the Laws of Arkansas for appeals from probate courts to circuit courts (sections 1385, 1386) and that on such an appeal a bill of exceptions is essential. But Congress has provided that appeals from the United States Courts in the Indian Territory to the United States Court of Appeals in the Indian Territory should be taken in the same manner as is provided in cases taken by appeal from the Circuit Courts of the United States to the Circuit Court of Appeals of the United States for the Eighth Circuit. Act March 3, 1905, c. 1479, Sec. 12, 33 Stat. 1081 (U.S. Comp St. Supp. 1905, p. 150). This appeal was so taken. No bill of exceptions is required to bring the entire record before this court in a suit in equity on an appeal from a Circuit Court, and hence none was essential to do so in the Court of Appeals of the Indian Territory. Sections...

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