Seaman v. Northwestern Mut. Life Ins. Co.

• Decision Date: 11 April 1898
• Docket Number: 987.
• Citation: 86 F. 493
• Parties: SEAMAN v. NORTHWESTERN MUT. LIFE INS. CO. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

86 F. 493

SEAMAN v. NORTHWESTERN MUT. LIFE INS. CO. ^[1]

No. 987.

United States Court of Appeals, Eighth Circuit.

April 11, 1898

William A. De Board (Edmund M. Bartlett and Howard H. Baldridge, on brief), for appellant.

Howard Kennedy, Jr., for appellee.

Before SANBORN and THAYER, Circuit Judges, and PHILIPS, District judge.

SANBORN Circuit Judge.

This is an appeal from an order of confirmation of a sale made under a decree of foreclosure of a mortgage rendered on December 9 1895, in favor of the Northwestern Mutual Life Insurance Company, the appellee, and against William T. Seaman, the appellant. The sale was made by E. S. Dundy, Jr., one of the masters in chancery of the court below, on March 20, 1897. On March 18, 1897, the appellant filed a motion to set aside the appraisement on which the sale was based. On May 3, 1897, an order was made denying this motion, and confirming the sale. Counsel for the appellant seek for a reversal of this order on several grounds, which will be considered seriatim:

1. They insist that the order was erroneous because no notice of the making of the appraisement was served on the appellant; but neither the decree, nor the statute under which the appraisement was made, required any such notice. The claim is not that the appellant had no notice of the suit, or that he had no hearing as to the terms of the decree, but simply that he received no notice of the time and place of the appraisement. He answered the bill. He took no appeal from the decree. He applied for and obtained a stay of proceedings under it, and thereby waived all objections to its terms, and to the proceedings on which it was based. Ecklund v. Willis, 41 Neb. 737 740, 60 N.W. 1026, and cases cited. In the absence of the statute, no appraisement, and, of course, no notice of an appraisement, would have been requisite to a valid sale. The statute was enacted by the legislature of Nebraska. Cobbey's Consol. St. Neb. 1891, Secs. 5023-5025. In order to secure uniformity of decisions, this court implicitly follows the construction of the constitution and statutes of a state given by its highest judicial tribunal, where no question of a general or commercial law, and no question of right under the constitution or laws of the United States is involved. Madden v. Lancaster Co., 27 U.S.App. 528 536, 12 C.C.A. 566, 570, and 65 F. 188.192. The statute of Nebraska does not in terms call for notice of the making of the appraisement, and the supreme court of that state has decided that a proper construction of this statute requires no such notice. Hamer v. McFeggan, 51 Neb. 227, 70 N.W. 937.

2. It is contended that the appraisement of February 15, 1897, on which the sale was based, and which was $32,000, was too low. In support of this position, the record contains the affidavits of 12 witnesses, and an appraisement of $40,000 made by the master and two disinterested freeholders on September 22, 1896. The lower appraisement stands supported, however, by the opinion of the trial court; by the opinion of the same master and the same freeholders on December 19, 1896, that the property was then worth only $31,500; by the fact that this property was twice offered for sale for $30,000, and no sale could be made, for want of bidders; by the opinion of the master and two other freeholders who made the appraisement of February 15, 1897; and by the affidavits of eight witnesses, who testified that the property was worth less than $32,000. This appraisement was made by two disinterested freeholders, under oath. They were called upon to view the property, and to exercise their judgment impartially upon an important question of fact in this suit. Their determination of that question is entitled to every presumption which attaches to a judicial decision. It ought not be disturbed unless it clearly appears that it was induced by fraud, or that it was the result of such a gross mistake that it would have the effect of a fraud. The opinion of sworn appraisers upon the question determined by them in the discharge of their duty outweighs the ex parte affidavits of many witnesses. The appraisement was not too low. Association v. Marshall (Neb.) 71 N.W. 63, 65; Vought v. Foxworth, 38 Neb. 790, 57 N.W. 538.

3. It is alleged that the court below erred by excluding from its consideration the evidence of the appellant relative to the value of the property. The allegation does not seem to be founded in fact (80 F. 360); and, if it is, the error was without prejudice, and would not warrant a reversal of the order, because the evidence was clearly insufficient to warrant a disturbance of the appraisement.

4. The objection is strenuously urged that E. S. Dundy, Jr., had no authority to call the appraisers, or to make the sale. It rests upon these facts: On November 23, 1882, E. S. Dundy, Jr., was appointed clerk of the United States district court for the district of Nebraska, and he continued to hold that office until after this sale was made. He was the son of Hon. Elmer S. Dundy, who was the judge of that court until he died, at a date subsequent to the entry of the decree in this case. The act of congress approved on March 3, 1879 (20 Stat. 415, c. 183), provides:

'No clerk of the district or circuit courts of the United States or their deputies shall be appointed a receiver or a master in any case except where the judge of said court shall determine that special reasons exist therefor, to be assigned in the order of appointment.'

On January 25, 1886, a number of the attorneys of the district of Nebraska presented a petition to the circuit court for the appointment of E. S. Dundy, Jr., as a standing master in chancery; and the following order was made and filed with the clerk of the court, but was never entered in any of its records:

'U.S. Circuit Court, District of Nebraska.

'On consideration of the annexed petition, it is ordered that E. S. Dundy, Jr., be appointed master in chancery of this court, and that he take and subscribe the oath of office, and file the same with the clerk of this court, within thirty days.

'Leavenworth, Jany. 25, 1886.

David J. Brewer, Circuit Judge. 'Elmer S. Dundy, District Judge.'

E. S. Dundy, Jr., took, subscribed, and filed his oath of office within the 30 days. By the act of congress approved on March 3, 1887, this provision was made:

'That no person related to any justice of judge of any court of the United States, by affinity or consanguinity, within the degree of first cousin, shall hereafter be appointed by such court of judge to or employed by such court or judge in any office or duty in any court of which such justice or judge may be a member.' 24 Stat. 555, c. 373, Sec. 7.

The decree in this case was rendered by Judge Shiras, and it provided that the mortgaged premises should 'be sold at public auction by, or under the direction of, a master in chancery of this court. ' Counsel for the appellee filed a praecipe for a sale by Master Dundy, and the clerk thereupon delivered to him a certified copy of the decree, and he made the sale. It is said that the order appointing E. S.Dundy, Jr., a standing master in chancery, is void, because it was not recorded in any of the books of the court, and that for this reason, and because he gave no bond, he was without authority to sell the mortgaged premises. But his appointment as standing master in chancery was made under rule 82 in equity, which provides, 'The circuit court may appoint standing masters in chancery in their respective districts, both the judges concurring in the appointment;' and there is no provision of law or rule of court which makes the recording of such an appointment in a book requisite to its validity. It was complete and effective when it was made and signed by both the judges, and filed with the clerk. Polleys v. Improvement Co., 113 U.S. 81, 5 Sup.Ct. 369; Marbury v. Madison, 1 Cranch, 137, 156, 161. Neither the statute, nor the decree under which the master sold this property, required him to give a bond, and one was not necessary to the legality of this action.

Another position of the counsel for appellant is that Dundy had no authority to act, because the appellant had no notice of his appointment to make this sale. No one is entitled to any notice of an appointment of a standing master. That appointment, like the appointment of a clerk or of a court commissioner, is to be made by the court, or by the judge or judges, as the case may be, without notice to any one. The master is an officer of the court, and no one but the court is entitled to notice or hearing upon the question of his...