Weir v. United States

• Decision Date: 07 January 1965
• Docket Number: No. 17687.,17687.
• Citation: 339 F.2d 82
• Parties: James WEIR, Appellant, v. UNITED STATES of America, Joe T. Kelly, Mrs. Gussie R. Kelly, Mary Ethel Kelly, Elizabeth Jane Kelly, Joanne Kelly, George S. Lensing, Leo A. Lensing, and Captain Jack Wyly, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

339 F.2d 82 (1964)

James WEIR, Appellant, v. UNITED STATES of America, Joe T. Kelly, Mrs. Gussie R. Kelly, Mary Ethel Kelly, Elizabeth Jane Kelly, Joanne Kelly, George S. Lensing, Leo A. Lensing, and Captain Jack Wyly, Appellees.

No. 17687.

United States Court of Appeals Eighth Circuit.

December 9, 1964.

Rehearing Denied January 7, 1965.

James P. Donovan, Dallas, Tex., James M. Barker, Jr., Hamburg, Ark., for appellant.

James W. Gallman, Asst. U. S. Atty., Little Rock, Ark., Robert D. Smith, Jr., U. S. Atty., Little Rock, Ark., for appellee United States.

William H. Drew, Lake Village, Ark., for appellees Joe T. Kelly et al.

Before MATTHES, BLACKMUN, and RIDGE, Circuit Judges.

RIDGE, Circuit Judge.

This appeal is from a final order of the United States District Court for the Eastern District of Arkansas, "dated November 14, 1963, refusing to set aside the execution sale of (appellant's) interest in certain lands in Chicot County, Arkansas, and the Order (of that Court) dated March 30th, 1964, denying (his) Motion for new trial or rehearing."

Two memorandum orders, both dated November 14, 1963, were entered by the court below. From the record in this appeal and appellant's brief it clearly appears that the right of review is here sought in relation to the order of the District Court set forth, in part, in the footnote.¹ Appellant's "motion for new trial" as filed in respect to that order was not lodged with the District Court until November 26, 1963, i. e. more than ten days after entry thereof. Rule 59(b) F.R.C.P. (28 U.S.C.A.) provides: "A motion for new trial shall be served not later than 10 days after the entry of judgment." The Federal Rules of Civil Procedure make no provision for an appeal from, or review of, an order granting or denying a motion for new trial. Powers v. Continental Cas. Co., 301 F.2d 386 (8 Cir. 1962); Tsai v. Rosenthal, 297 F.2d 614 (8 Cir. 1961); Alexander v. Special School District of Booneville, Logan County, Arkansas, 132 F.2d 355 (8 Cir. 1943); State of Missouri by Unemployment Compensation Commission v. Todd, 122 F.2d 804 (8 Cir. 1941). If a motion for new trial is not served within the time prescribed by Rule 59(b), supra, it is too late and cannot be granted by the District Court. (Cf. Chicago & N. W. Ry. Co. v. Britten, 301 F.2d 400 (8 Cir. 1962). A District Court is powerless to enlarge the period of time required for the service of such a motion. Nugent v. Yellow Cab Co., 295 F.2d 794 (7 Cir. 1961); Federal Deposit Ins. Corp. etc. v. Alker, et al., 234 F.2d 113 (3 Cir. 1956). Appellant's attempted appeal in the case at bar from "the Order * * * denying (his) Motion for new trial or rehearing" presents nothing for review by this Court.

The memorandum opinion of the District Court, considering matters adjudicated by its judgment set forth in the footnote ante, may be found at 235 F. Supp. 306 (E.D.Ark.1963). The judgment on which the "execution" there considered was issued has its premise in the judgment reviewed and sustained by this Court in Weir v. United States, 310 F.2d 149 (8 Cir. 1962). It is readily apparent from those cited authorities that this litigation is what might be termed "self-made protracted litigation." Hence in the process of our applying and adapting abstract law to the concrete facts of moment in the instant appeal, we shall avoid as much rewording and reasons therefor as possible. We do so because it is apparent that all which is involved in this appeal relates to an "execution" that has been aptly termed "the fruit and end" of a lawsuit. Bank of United States v. Halstead, 10 Wheat. 51, 64, 23 U.S. 51, 64, 6 L.Ed. 264.

In the case at bar appellant assigns error on the part of the District Court as follows:

"(1) The trial court was without jurisdiction to order sale of Appellant\'s property in accordance with the provisions of Arkansas law.

"(2) The purported levy and sale under Arkansas law was lacking in due process.

"(3) The levy against and sale of a $200,000 farm to satisfy a $22,000 judgment is void under State and Federal law and a denial of due process and equal protection of the law."

By brief, appellant states: "In accordance with an opinion rendered by the (District) Court on November 14, 1963, a Judgment was entered denying Appellant's Motion to Set Aside" a sale of real property on that date, perforce a writ of execution issued by the District Court. It is "From this Judgment Appellant has filed this Appeal." In the light of the foregoing, and the fact that the record here does not reveal service of appellant's motion for new trial within ten days after entry of the judgment, review of which he here seeks, the extent of our review is confined to "plain error" appearing in the face of the record.

Ten days after entry of the judgment against appellant, which was affirmed by this Court, ante, a writ of execution fieri facias was issued at the request of the United States, commanding the United States Marshal for the Eastern District of Arkansas to make levy on the "goods and chattels, lands and tenements of appellant." On March 5, 1962, a Deputy United States Marshal served that writ on appellant at his home and attempted to explain to him his right to post supersedeas bond or to select specific personal property to be levied on and sold thereunder. Although the evidence is somewhat unclear as to what occurred during that confrontation, it appears uncontroverted and the District Court found that appellant's attitude was then so menacing and uncooperative that the Marshal left appellant's presence without pressing the matter. The Marshal then proceeded to appellant's farm where he discovered the barn and grain bins located thereon to be locked. The only loose personal property he could discover on the farm was a piece of farm equipment which he did not consider to be of sufficient value to satisfy the judgment. This being so, he made levy of the fieri facias on the farm, itself, posting the necessary notices.

The Court below found that the notice of sale in relation to appellant's farm was properly advertised for April 17, 1962. The day prior to such sale appellant filed an application in the District Court to enjoin the sale, which was denied the same day. In its order denying that application the District Court pointed out that appellant had not availed himself of his rights of selection as provided by Ark. Stats. §§ 30-401, 30-421 & 30-422, even though this issue had not been raised by appellant.

The sale of the farm under fieri facias was duly held by the United States Marshal at Lake Village, the County Seat of Chicot County, Arkansas, on April 17, 1962. A large crowd of interested persons, generally favorable to appellant, was present for the sale, as well as appellant and his then attorney. The United States Attorney, being desirous of avoiding a sale, attempted even at this late hour to reach a settlement or at least to convince appellant to post supersedeas, but on the advice of Mr. Wyly, who was then acting as his attorney, appellant refused to consider such offers. The land was offered in a block (some 994.46 acres), and finally bid in at $60,000.00 plus interest by Mr. Wyly. Wyly supposedly was bidding for one Warren, who in turn it appears was representing the interests of appellant. Although it is controverted, there was evidence to the effect that friends of appellant controlled the bidding at the sale, allowing it to reach the above status before they stopped bidding. Following the sale to Wyly, the latter attempted to work out an agreement with the Government whereby the impounded rice on appellant's farm would be sold to satisfy the judgment, following which Warren would release his rights under the certificate of sale. Appellant refused to consider that arrangement and discharged Wyly as his attorney.

On September 28, 1962, Warren assigned his certificate of sale to the additional appellees herein, upon their payment to the United States Marshal of a total sum of $61,689.34. The judgment and accrued interest covered by the writ of fieri facias were satisfied from this sum and the remainder impounded by the Marshal pending the outcome of three other lawsuits then pending against appellant. The statutory period for redemption from the execution sale here mentioned expired on April 17, 1963, with no redemption therefrom attempted by appellant, as provided in Title 30, Chapter 4, Ark.Stat., 1947, Anno. It was not until April 19, 1963, that appellant filed his motion to set aside the sale here considered. Issuance of a deed to the assignees of the purchaser was held in abeyance pending the outcome of that motion. As stated above, the motion was overruled on November 14, 1963, and appellant's motion for new trial and rehearing was denied on March 30, 1964.

Appellant bases his first assignment of error, supra, on 28 U.S.C.A. §§ 2001-2002, captioned, "Executions and Judicial Sales," found in Chapter 127 of the Code, which he interprets as requiring the sale here considered to proceed under federal procedures as there outlined. Although the chapter caption under which the above-mentioned sections are found, purportedly includes "execution sales" it is manifest from the language of the statute, itself, that it is clearly made applicable only to "judicial sales." Former §§ 847-848, of Title 28 U.S.C.A. which were replaced by §§ 2001-2002, supra, were interpreted in Yazoo & M. V. R. Co. v. Clarksdale, 257 U.S. 10, 42 S.Ct. 27, 66 L.Ed. 104 (1921). The Supreme Court in that case noted the distinction between judicial sales "* * * made under order or decree of the court and requiring confirmation by the court for their validity * * *" and executions "which issue by mere praecipe of the judgment creditor * * * and only come under judicial supervision on complaint of either party" (257 U.S. 10, 19, 42 S.Ct. 27, 29) as being different things. In this connection it should be noted the opening words of § 2001(a) read: "(a...