Sabin v. HOME OWNERS'LOAN CORPORATION

• Citation: 147 F.2d 653
• Decision Date: 19 March 1945
• Docket Number: No. 3063.,3063.
• Parties: SABIN et al. v. HOME OWNERS' LOAN CORPORATION et al.
• Court: U.S. Court of Appeals — Tenth Circuit

147 F.2d 653 (1945)

SABIN et al. v. HOME OWNERS' LOAN CORPORATION et al.

No. 3063.

Circuit Court of Appeals, Tenth Circuit.

February 21, 1945.

Rehearing Denied March 19, 1945.

Lee Williams, of Oklahoma City, Okl. (Herbert K. Hyde, of Oklahoma City, Okl., on the brief), for appellants.

Eben L. Taylor, of Tulsa, Okl. (A. M. Frazier and Saul A. Yager, both of Tulsa, Okl., on the brief), for appellee Home Owners' Loan Corporation.

G. Ellis Gable, of Tulsa, Okl. (Kavanaugh Bush and Chas. P. Gotwals, Jr., both of Tulsa, Okl., on the brief), for appellee O. K. Wetzel.

R. D. Hudson and Wash E. Hudson, both of Tulsa, Okl., on the brief for appellees A. Garland Marrs, Sheriff of Tulsa County, Okl., W. S. Duggins, Nate Martin, John Burnett, and Tom Kithcart, Deputy Sheriffs of Tulsa County, Okl.

A. E. Montgomery, of Tulsa, Okl., on the brief for Joe Hodges, doing business as Joe Hodges Transfer & Storage.

Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.

BRATTON, Circuit Judge.

Milton Sabin and Bertha Florence Sabin executed to Home Owners' Loan Corporation a note and a mortgage covering a lot in Sunset Terrace Addition to Tulsa, Oklahoma. Home Owners' Loan Corporation instituted an action in the state court to foreclose the mortgage. Judgment was rendered for plaintiff; and it provided, among other things, that if it was not paid within six months, an order of sale should issue to the sheriff commanding him to advertise and sell the property according to law, without appraisement. The judgment was not paid, the order of sale was issued, the property was advertised and sold, Home Owners' Loan Corporation was the purchaser, and the sale was confirmed. The order of confirmation directed the sheriff to execute and deliver to the purchaser a deed, and it further directed the clerk to issue a writ of assistance directed to the sheriff commanding him to place the purchaser in possession. The deed was executed and delivered, as directed. The judgment was affirmed, and the order confirming the sale was upheld. Sabin v. Home Owners' Loan Corporation, 187 Okl. 504, 105 P.2d 245, certiorari denied, 313 U.S. 570, 61 S.Ct. 957, 85 L.Ed. 1529. Possession of the premises not having been surrendered to the purchaser, the writ of assistance was issued and placed in the hands of the sheriff but was returned with the notation that it had not been executed pursuant to direction of the attorney for plaintiff. An alias writ of assistance was issued; and the sheriff, acting through certain deputies, executed it by removing from the premises the household furniture, certain personal effects, three automobiles, and some building material, and by placing the purchaser in possession. The furniture and personal effects were placed in storage, and the building material was delivered to the storage company for safekeeping. The Sabins could have obtained them at any time by paying a reasonable storage charge. The automobiles were delivered to a garage for safekeeping, and they too could have been obtained at any time by the payment of a reasonable charge. But in neither instance was the charge paid. And the state finally caused the automobiles to be sold at public auction for unpaid license or tag charges due the state.

The Sabins instituted this action in the state court against Home Owners' Loan Corporation; O. K. Wetzel, an attorney who represented Home Owners' Loan Corporation in the foreclosure proceeding; P. L. Murphy, an agent of Home Owners' Loan Corporation; Cal Crum, the clerk of the state court who issued the order of sale, the writ of assistance, and the alias writ of assistance; the sheriff, and the deputies who took part in executing the alias writ of assistance; and the owner of the transfer and storage company that removed in vans the personal property, under the direction of the sheriff. It was alleged in the petition that at the time of the removal of the personal property, the real property was in litigation in the Supreme Court of the state — not finally adjudicated; that a good and sufficient bond had been posted, by the terms of which plaintiffs were to occupy such premises; and that the defendants, pretending to act colore officii, but without any legal right, wrongfully and with the full intent to deprive plaintiffs of their property, broke into and entered the premises, seized, removed, and converted to their own use the personal property. Damages in excess of $400,000 were sought. The action was removed to the United States Court, and a motion to remand was denied. At the close of the evidence for plaintiffs, the court dismissed the action as to the defendants Wetzel, Murphy, and Crum; and at the close of all the evidence, the court directed a verdict for the defendant Home Owners' Loan Corporation. The evidence presented an issue of fact as to whether the building material was on the lot covered by the mortgage and described in the alias writ of assistance or on an adjoining lot. The court submitted that issue to the jury with appropriate instructions as to liability of the sheriff, the deputies, and the owner of the transfer and storage company if the property was on the adjoining lot; and the jury returned a verdict for such defendants.

The first contention advanced is that the court erred in denying the motion to remand. All of the defendants joined in the petition for removal. The ground of removal was that the suit was one of a civil nature arising under the laws of the United States. Section 24(1) of the Judicial Code, 28 U.S.C.A. § 41(1), vests in the district courts of the United States jurisdiction of all suits of a civil nature arising under the Constitution and laws of the United States, where the amount in controversy exceeds, exclusive of interest and costs, the sum of $3,000; and section 28, 28 U.S.C.A. § 71, authorizes the removal of any case of which the United States Courts are given original jurisdiction. The test for determining the removability of an action is whether the United States Court might have exercised original jurisdiction. Arkansas v. Kansas & Texas Coal Co., 183 U. S. 185, 22 S.Ct. 47, 46 L.Ed. 144; Boston and Montana Consolidated Copper and Silver Mining Co. v. Montana Ore Purchasing Co., 188 U.S. 632, 23 S.Ct. 434, 47 L.Ed. 626; Madisonville Traction Co. v. St. Bernard Mining Co., 196 U.S. 239, 25 S.Ct. 251, 49 L.Ed. 462; Cochran v. Montgomery County, 199 U.S. 260, 26 S.Ct. 58, 50 L.Ed. 182, 4 Ann.Cas. 451; Ex parte Wisner, 203 U.S. 449, 27 S.Ct. 150, 51 L.Ed. 264; In re Dunn, 212 U.S. 374, 29 S.Ct. 299, 53 L.Ed. 558; In re Winn, 213 U.S. 458, 29 S.Ct. 515, 53 L.Ed. 873; Connolly v. First National Bank of Detroit, 6 Cir., 86 F.2d 683, certiorari denied, 301 U.S. 692, 57 S.Ct. 795, 81 L.Ed. 1348; Tennessee Valley Authority v. Tennessee Electric Power Co., 6 Cir., 90 F.2d 885, certiorari denied, 301 U.S. 710, 57 S.Ct. 945, 81 L.Ed. 1363.

The defendant Home Owners' Loan Corporation is a corporation created under the Act of June 13, 1933, 48 Stat. 128, 12 U.S. C.A. § 1461 et seq. All of its capital is subscribed by the Secretary of the Treasury on behalf of the United States. It is the wholly owned instrumentality of the United States in whose behalf the power to obtain and expend money is exercised. It therefore is entitled to invoke the jurisdiction of the United States Courts, originally and by removal, save as limited by statute. Federal Intermediate Credit Bank v. Mitchell, 277 U.S. 213, 48 S.Ct. 449, 72 L.Ed. 854; Tennessee Valley Authority v. Tennessee Electric Power Co., supra.

It is provided by section 12 of the Act of February 13, 1925, 43 Stat. 941, 28 U.S.C.A. § 42, that no district court shall have jurisdiction of any action by or against a corporation on the ground that it was incorporated by or under an Act of Congress, but the statute expressly excludes from its operation actions by or against a corporation chartered by Act of Congress and in which the United States owns more than one-half of the capital stock. Since Home Owners' Loan Corporation was chartered by Act of Congress, and since all of its capital stock is owned by...