Nevada Nickel Syndicate v. National Nickel Co.

• Decision Date: 23 July 1900
• Docket Number: 641.
• Citation: 103 F. 391
• Parties: NEVADA NICKEL SYNDICATE, Limited, v. NATIONAL NICKEL CO. et al.
• Court: U.S. District Court — District of Nevada

103 F. 391

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

No. 641.

United States Circuit Court, D. Nevada.

July 23, 1900

The motions made herein are based upon affidavits, upon the decree of the court, order of sale, return of the special master, the certificate of sale, order confirming the sale and other documents pertinent to the motions. Counter affidavits were presented, and other documents submitted, in opposition to the motions. From the record, as presented upon these motions, the following facts appear: On the 12th day of August, 1899, a decree was entered in this cause, due notice of which was given to the defendant's attorney, and copy served upon D. J. Noyes the general managing agent of defendant on the 15th day of August, 1899. . and decreed that said lands, premises, and property hereinafter described, or so much thereof as may be necessary, be sold by J. F. Emmitt, * * * who is hereby appointed a special master in this suit forth purpose of making said sale and executing the certificates, bills of sale, and deeds hereinafter provided for, and that said sale be made at public auction, and that all said lands, premises and property be sold in one parcel, as a whole; that at such sale plaintiff * * * may bid and become purchaser, and that upon making such sales the said master shall give to the purchaser a bill of sale and immediate delivery of all personal property sold by him under this decree, delivering said personal property, and that said master give to the purchaser of any real property a certificate of sale, containing a particular description of the land and property, the price bid for the same, the price paid, and a statement that the land and realty sold is subject to redemption; that said master shall file a * * * certificate with the clerk of this court; that such lands and real property so sold may be redeemed from such sale by persons or corporations authorized by the statutes of the state of Nevada at the time and in the manner as provided by said statutes; that, if no redemption is made within six months after such sale, the said master shall report such sales to this court, and, upon the confirmation of such sale by the court, that said master shall execute and deliver to the purchaser a deed of the property bought by him, and, upon the production of such deed or conveyance by the purchaser, that he be let into possession of the land, premises, and property bought by him. ' After giving a description of the real estate and personal property, the decree further provides: 'It is further ordered, adjudged, and decreed that said master, before making said sale of said lands, premises, and property, shall post notice of the time, the place of said sale, particularly describing said lands, premises, and property, for twenty days, successively, in three public places in each township where said property, or any part thereof, is situated, and also in the township of city where said property is to be sold; and, there being no newspaper printed or published in said Churchill county, it is further ordered, adjudged, and decreed that said master publish a copy of said notice in the Silver State, a newspaper printed and published at the town of Winnemucca, in the county of Humboldt, state of Nevada, for the same period of twenty days. It is further ordered, adjudged, and decreed that said sale be made at public auction, for cash, to the highest bidder, between the hours of nine in the morning and five in the afternoon, at the door of the county court house of said Churchill county, at the town of Stillwater. ' On November 3, 1899, an order of sale was issued and placed in the hands of the master for execution, and on the 13th day of January, 1900, the special master made return, among other things, as follows: 'That under and by virtue and in pursuance of the annexed decree and order of sale, by me received on the 3d day of November, A.D. 1899, I did on the 13th day of November, A.D. 1899, levy upon the lands, mining claims, lodes, veins, and the premises and the improvements thereon, and personal property, as described in the said annexed decree and order of sale, * * * and I advertised the property (describing the same) * * * to be sold by me in front of the court-house door in the town of Stillwater, county of Churchill, state of Nevada, on the 9th day of December, A.D. 1899, at the hour of one o'clock p.m.; that previous to said sale I posted notices particularly describing the property, for a period of twenty days, in three public places of the township where the property is situate, and also in the township where the property was to be sold, and also caused due and legal written notice thereof to be published for a period of twenty successive days preceding said sale in the Silver State, a newspaper printed and published in the town of Winnemucca, Humboldt county, state of Nevada, * * * and that on the 9th day of December, 1899, the day on which said premises were so advertised to be sold as aforesaid, I attended at the time and place fixed for said sale, and exposed the said premises for sale in one parcel, pursuant to the said decree and order of sale, and at the request of the judgment debtor, at public auction, according to law, to the highest bidder, for cash, when the Nevada Nickel Syndicate, Limited, being the highest bidder therefor, the said premises were struck off by me to the said Nevada Nickel Syndicate for the sum of $38,071.01, * * * which was the whole price bid, and which I acknowledge to have received; and that I delivered to said purchaser a certificate of said sale. * * * And I herewith return said judgment and decree fully satisfied. ' The certificate of sale which the special master was required by the decree to file with the clerk of this court was filed December 18, 1899, and the special master therein certifies 'that the said property was sold in one lot or parcel, as directed by said decree and order of sale. ' It further appears that on the 4th day of December, 1899, five days prior to the sale, John Leighton, president of the defendant company, served notice upon the special master not to sell certain personal property which he had levied on for sale, claiming the same to belong to him; that a similar notice was served upon the special master by S. F. Field, who was the assistant secretary of the defendant corporation, one of its directors, and the alleged judgment creditor of the defendant corporation, claiming certain personal property described in the notice, to belong to him; that on the 22d day of January, 1900, the plaintiff gave notice that it would apply to this court to confirm the sale on January 27, 1900; that a copy of this notice was served upon, and service thereof acknowledged by, the attorney for the defendant the National Nickel Company, and that at said time a copy of the master's return was also served upon said counsel; that on the 27th day of January, 1900, no exception to said master's report having been filed, and it appearing that sufficient notice of the hearing of said application had been given to the defendant, an order was made confirming the sale as made by the special master; that on the 7th day of February, 1900, the defendant filed its assignment of errors, and an appeal was allowed to the circuit court of appeals; that this appeal was afterwards dismissed by the circuit court of appeals for the Ninth circuit, under rule 16 of that court (32 C.C.A. clix., 90 F. clix.). National Nickel Co. v. Nevada Nickel Syndicate (C.C.A.) 101 F. 1006.

The statute of the United States entitled '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, provides as follows:

'Section 1. That all real estate or any interest in land sold under any order or decree of any United States court shall be sold at public sale at the courthouse of the county, parish or city in which the property, or the greater part thereof, is located, or upon the premises, as the court rendering such order or decree of sale may direct.

'Sec. 2. That all personal property sold under any order or decree of any court of the United States shall be sold as provided in the first section of this act, unless in the opinion of the court rendering such order or decree, it would be best to sell it in some other manner.

'Sec. 3. That hereafter no sale of real estate under any order, judgment or decree of any United States court shall be had without previous publication of notices of such proposed sale being ordered and had once a week for at least four weeks prior to such sale in at least one newspaper printed, regularly issued and having a general circulation in the county and state where the real estate proposed to be sold is situated, if such there be. If said property shall be situated in more than one county or state, such notice shall be published in such of the counties where said property is situated, as the court may direct. Said notice shall, among other things, describe the real estate to be sold. The court may, in its discretion, direct the publication of the notice of sale herein provided for to be made in such other papers as may seem proper.' 27 Stat. 751.

George W. Baker, for the motions.

W. E. F. Deal, opposed.

HAWLEY District Judge (after stating the facts.)

The foregoing facts bring forcibly to the mind the absolute necessity upon the part of counsel, of the courts, and of their officers to use extra care and caution in the performance of their respective duties, and to see that proper steps are taken, in strict accordance with the requirements of the law, in all judicial proceedings, so that the same will stand the test of the closest scrutiny, and be...