National Nickel Co. v. Nevada Nickel Syndicate

• Decision Date: 21 January 1901
• Docket Number: 701.
• Citation: 106 F. 110
• Parties: NATIONAL NICKEL CO. v. NEVADA NICKEL SYNDICATE, Limited.
• Court: U.S. District Court — District of Nevada

106 F. 110

NATIONAL NICKEL CO. v. NEVADA NICKEL SYNDICATE, Limited.

No. 701.

United States Circuit Court, D. Nevada.

January 21, 1901

George W. Baker (Thomas V. Cator, of counsel), for plaintiff.

W. E F. Deal, for defendant.

HAWLEY District Judge (orally).

This is an action of ejectment for the possession of certain lands and mining claims situate in Churchill county, Nev. The evidence given upon the trial presents the same questions that were discussed and decided by this court in Nevada Nickel Syndicate v. National Nickel Co. (C.C.) 103 F 391. Some of the facts will be restated: On August 12, 1899 this court entered a decree in the foreclosure suit of Nevada Nickel Syndicate v. National Nickel Co (C.C.) 96 F. 133, and directed the sale of the property in this action by a special master duly appointed for that purpose. By inadvertence this decree, as drawn by counsel, in providing the time and manner of making the sale, followed the provisions of the state statute. On August 15, 1899, the managing agent of the National Nickel Company and George W. Baker, its attorney, were each personally served with a certified copy of this decree. The special master advertised the property to be sold, as directed by the decree, by publication and posting of notices in accordance therewith. The sale was made December 9, 1899. The Nevada Nickel Syndicate, Limited, became the purchaser of the property, bidding therefor the full amount of its judgment against the National Nickel Company, and received from the special master his certificate of sale. The special master thereafter, on the 15th day of January, 1900, filed a verified report of his proceedings under the order of sale. On the 7th day of December, 1899, the Nevada Nickel Syndicate, Limited, having previously applied to this court in the foreclosure proceeding for a writ of assistance to restore to it the possession of the property herein involved, in accordance with the terms and conditions of the original and supplementary agreements of the respective parties and the mortgage, the motion, after a full hearing, was granted, and the United States marshal was ordered to execute the writ of ejecting the National Nickel Company from the property, and placing the Nevada Nickel Syndicate, Limited, in possession thereof. The United States marshal executed the writ on the 13th day of December, 1899, and the Nevada Nickel Syndicate, Limited, defendant herein, has been in possession of the property since that date. On January 27, 1900, after due and timely notice to the National Nickel Company of the motion to confirm the same, this court, after a hearing upon the motion, there being no objection thereto upon the part of the National Nickel Company, confirmed the sale. On July 23, 1900, this court denied the motions made by the National Nickel Company, plaintiff herein, and a judgment creditor of said company, to set aside the sale of the property, made by the special master and confirmed by this court, on the ground that notice thereof had not been given as required by the act of congress of March 3, 1893 (27 Stat. 751). Nevada Nickel Syndicate v. National Nickel Co. (C.C.) 103 F. 391. On August 3, 1900, no redemption of the property having been made, and the time therefor having expired, the special master made, executed, and delivered to the Nevada Nickel Syndicate, Limited, a deed of the property involved herein, in conformity with the decree of foreclosure and order confirming the sale. On the 7th day of February, 1900, an appeal was allowed by this court from the decree of foreclosure, but was afterwards dismissed by the circuit court of appeals for want of prosecution. National Nickel Co. v. National Nickel Syndicate, 41 C.C.A. 681, 101 F. 1006. No appeal was ever applied for or taken from the decree of the court confirming the sale, and the time for taking such appeal expired before the commencement of the present action.

Is the deed executed by the special master valid? Is it sufficient to convey the legal title to the property herein involved? Did the confirmation of the sale by the court after due notice, no objections thereto having been made, cure the defects, irregularities, and errors in the decree ordering the sale? In the light of all the facts disclosed in the record, can the plaintiff maintain the present action? Were the proceedings in the original suit concerning the sale of the property void or only voidable?

In the former opinion of this court it was expressly admitted 'that, if the defendant had appeared and protested against the confirmation of the sale upon the ground that the notice of sale had not been given as required by the statute the court would have refused to make the decree confirming the sale. ' And herein lies the distinction between this case and the case of Wilson v. Insurance Co., 12 C.C.A. 505, 65 F. 38, upon which plaintiff specially relies. There an appeal was taken 'from an order confirming a master's sale and overruling exceptions to his report thereof in a suit to foreclose a mortgage. ' It was assigned as error 'that the court below confirmed this sale over objection made and exception taken by the appellants on the ground that no notice of the sale had been published,' as required by the third section of 'An act to regulate the manner in which property shall be sold under orders and decrees of any United States courts,' approved March 3, 1893. Here there was no objection made to the order of sale; no appearance on the part of the defendant (plaintiff herein) in the foreclosure suit at the time of the confirmation of the sale, although it had due and timely notice thereof; no opposition to the decree and order of confirmation; no exception taken either to the master's report or to the decree of confirmation; no appeal from the order of the court confirming the master's sale, and the time for taking such an appeal expired long prior to the commencement of the present action. It is admitted by plaintiff that the decree in the foreclosure suit-- Nevada Nickel Syndicate v. National Nickel Co. (C.C.) 96 F. 133, 156-- is final; that the rights of the defendant herein were thereby established, and cannot now be questioned, because no appeal was taken therefrom. No principle of law is better settled than 'that a cause of action once finally determined, without appeal or some proceeding for the annulment of the judgment between the parties on the merits by any competent tribunal, cannot afterwards be litigated by a new proceeding either before the same or any other tribunal.' 11 Am. & Eng.Enc.Law, 390, and authorities there cited. The law is also well settled that where jurisdiction, or the power to act, exists, and the only objection to its exercise is one intended for the benefit and protection of the party complaining thereof, such objection must be taken at the earliest practicable opportunity after the party or his counsel is aware of its existence, or it will be regarded as waived by the omission or neglect of the party to urge it seasonably. A party cognizant, in the earlier states thereof, of an objection that might be fatal to the validity of proceedings before a tribunal otherwise competent, cannot be permitted to lie by and take the chances of a favorable result, and, after an adverse one has been reached, be allowed to avail himself of that objection to avoid its consequences. Does not this principle apply as well to the order of sale as to the decree of foreclosure? The suit does not end with the decree of sale. The proceedings still continue until final confirmation. Ror. Jud. Sales, Secs. 18, 106, 115. The final decree was the confirmation of the sale by the court. From this decree the plaintiff herein had the right of appeal. It neglected to avail itself of this privilege. Is it not now estopped from bringing another action to accomplish the same purpose that it could have accomplished in the proceeding in the original suit if it had availed itself of its rights in the premises? Is there any such a thing known to the law as an end to litigation? Can a party stand mute and allow proceedings to be had in a case without making any objection or taking any exception thereto, and thereafter bring an independent action on the ground that the steps taken in the original suit were not in due compliance with the law? Having consented to the sale as made by the master, and having failed and neglected to make any objection to the confirmation of the sale, has not the defendant in the original suit (plai...