199 F. 561 | 9th Cir. | 1912
(after stating the facts as above).
The intervener holds a receiver’s certificate, similar to that Lfid by the plaintiff Cowden, and seeks similar relief, and upon the same grounds. They therefore occupy precisely the same position.
The plaintiffs contend that the judgments in cases numbered 1,570, 1,571, and 1,573 are void, on the ground of fraud in the indebtedness upon which they were founded, and because of lack of service of process therein upon an accredited agent of the Campion Mining & Trading Company. The service, as has been seen, was made upon one William A. Gilmore, who pretended to be the agent and representative of the company, and who filed general appearances and pleadings for it in those cases. The complaint shows that service was made on Gilmore on the 18th of August, 1906, and that he appeared and pleaded in due time, and that it was not until July 2, 1907 — nearly one year thereafter — that the judgments were entered. Not only is there no allegation in the complaint that the Campion Mining & Trading Company did not know of the bringing of those actions and of the proceedings therein, but this allegation in the complaint affirmatively shows that that company did have such knowledge: “Plaintiff further alleges that said properties so levied upon, as hereinafter alleged, had been attached by the marshal at or about the time of the bringing of said actions, by force of writs of attachment issued in said actions respectively to him, and said alias executions were levied upon the same properties so previously attached.”
Notwithstanding such knowledge, neither the company nor the receiver of its property made any application to the court in which the actions were pending to set aside the service, or in any way question Gilmore’s authority. Moreover, neither the company nor the receiver, in their cross-complaint, questioned the fact or the good faith of the stipulation entered into by them with the plaintiffs in actions 1,570, 1,571, and .1,573, referred to in the above
Under such circumstances, neither the company nor its receiver should be heard to say in a court of equity that Gilmore did not have the authority claimed. Denton v. Baker, 93 F. 46, 35 C.C.A. 187; Mass. Benefit Life Ass’n v. Lohmiller et al., 74 F. 23, 20 C.C.A. 274, and cases there cited. Besides, while the complaint alleges that the receiver was not authorized to enter into the stipulation, it contains no allegation that the Campion Mining & Trading Company was itself unauthorized to enter into it, but, on the contrary, expressly alleges that it did do so.
Both the plaintiffs anfi cross-complainants by their pleadings concede the fact that under and by virtue of the stipulation the Campion Mining & Trading Company and the receiver of its property received a valuable consideration. Both are therefore estopped to deny the validity of the judgments. There is no allegation that they did not have actual knowledge of the sale of the property of the company under the executions; and that they had at least constructive notice is shown by the fact that by the statutes of
The irregularities which occurred in the making of the sales in question under the executions which are complained of were cured by the confirmation of the sales by the court. In Heid v. Ebner, 133 F. 156, 66 C.C.A. 222, this court said: “It is the general rule in the United States that the confirmation of a judicial sale by a court of competent jurisdiction cures all irregularities in the proceedings leading up to or in the conduct of the sale, and that while such a sale will be set aside where fraud, mistake, or surprise is shown, mere irregularities in the preliminary proceedings do not render the sale invalid, and will not suffice to set it aside after confirmation. Wills v. Chandler (C.C.) 2 F. 273; Cooper v. Reynolds, 10 Wall. 308, 19 L.Ed. 931; Ludlow v. Ramsey, 11 Wall. 581, 20 L.Ed. 216; Stockmeyer v. Tobin, 139 U.S. 176, 11 S.Ct. 504, 35 L.Ed. 123. The laws of Alaska are in accord with this general rule. Section 283 of Carter’s Codes of Alaska, pt. 4, provides, in subdivision 4 (Act June 6, 1900, c. 786, 31 Stat. 379) thereof: ‘An order confirming a sale shall be a conclusive determination of the regularity of the proceedings concerning such sale, as to all persons, in any other action or proceeding whatever.’ ”
The laws of Alaska also provide that: “From the date of the attachment until it be discharged or the writ executed, the plaintiff, as against third persons, shall be deemed a purchaser in good faith and for a valuable consideration of the property, real and personal, attached.” Carter’s Alaska Codes, p. 174.
As has been stated, the property sold under the executions in question was attached August 18, 1906, and the receiver was not appointed until August 13, 1907, and then in an action to which the plaintiffs in the attachment cases were not parties. The mere appointment of the receiver, therefore, did not divest the liens acquired by the attach-
The contention on the part of the appellants that the holders of the receiver’s certificates have a paraniount lien upon all of the assets of the Campion Mining & Trading Company is endeavored to be supported by a citation of the cases of Wallace v. Loomis, 97 U.S. 146, 24 L.Ed. 895, Miltonberger v. Railroad Co., 106 U.S. 286, 1 S.Ct. 140, 27 L.Ed. 117, Union Trust Co. v. Illinois M. Railway Co., 117 U.S. 434, 6 S.Ct. 809, 29 L.Ed. 963, and Kneeland v. Luce & Co., 141 U.S. 491, 12 S.Ct. 32, 35 L.Ed. 830. All of those are cases of certificates issued by receivers of railroads, which, for special reasons many times stated and covering a limited period only, the courts sometimes prefer over other liens. The inapplicability of such cases to the present one is made manifest by the Supreme Court in Union Trust Co. v. Ill. M. R. Co., 117 U.S. at pages 455, 456, 6 S.Ct. at pages 820, 821, 29 L.Ed. 963, where it is said: “Property subject to liens and claims and debts, of various characters and ranks, which is brought within the cognizance of a court of equity for administration, and conversion into money, and distribution, is a trust fund. It is to be preserved for those entitled to it. This must be done by the hands of the court, through officers. The character of the property gives character to the particular species of preservation which it requires. Unimproved land may lie idle, with only payment of taxes. Improved property should be rented. Movable property that is not perishable may be locked up and kept; but, if perishable, it must be sold, by way of preservation. A railroad, and its appurtenances, is a peculiar species of property. Not only will its structures deteriorate and decay and perish, if not cared for and kept up, but. its business and good will will pass away if it is not run and kept in good order. Moreover, a railroad is a matter of public concern. The franchises and rights of the corporation which constructed it were given, not merely for private gain to’ the corporators, but to furnish a public highway; and all persons who deal with the corporation as creditors or holders of its obligations must necessarily be held to do so in the view that if it falls into insolvency, and its affairs
We are of the opinion that the demurrers were properly sustained by the court below, and its judgment is affirmed.