Dikeman v. Jewel Gold Mining Co.

2 F.2d 665 | 9th Cir. | 1924

HUNT, Circuit Judge

(after stating the facts as above).

By the assignments plaintiffs in error ask a review of the order of tire court refusing to confirm the second sale and ordering it set aside. But a question of our jurisdiction at once arises, because, if that order was not a final one, we cannot take jurisdiction, and the only disposition to be made of the matter is to grant the motion of the defendant in error to dismiss the writ for lack of jurisdiction.

The Code of Civil Procedure of Alaska (sections 1336, 1337, Comp.Laws of Alaska) provides that appeals and writs of error may be taken and prosecuted from “final judgments and decrees” and from interlocutory orders granting or dissolving injunctions, or refusing to grant or dissolve injunctions in pending causes. An order setting aside a sale upon the ground that property which did not belong to the judgment debtors had been included in a lump sum sale was a disposition of a step in the case but not of the case itself. Such an order merely sets aside one sale, and presumably the court intends to order another. And in the present case the irregularities or defects pointed out by the District Court were at least sufficient grounds upon which the discretionary act of refusing to confirm could be predicated; and that being so, unless there was a manifest abuse of judgment, or an unreasonable exercise of authority, the writ of error will not be sustained. In Butterfield v. Usher, 91 U.S. 246, 23 L.Ed. 318, after a sale was confirmed and a deed was approved, an order of confirmation was set aside and leave granted to show cause against confirmation. Showing Was made, order of confirmation followed, and appeal was taken to the Supreme Court of the District of Columbia, where the sale was vacated and a decree of resale was ordered. Upon appeal from the decree it was held that while a judgment confirming the sale would have been final, the decree appealed from was analogous to a judgment of reversal with directions for a new trial or hearing, which is not final. The court referred to Blossom v. Railroad Co., 1 Wall. 655, 17 L.Ed. 673, where, under a decree of foreclosure of mortgage, a bid was made by one not a party to the suit in foreclosure, but the sale was suspended. Appeal was entertained because the decree appealed from was held to be final and an end of proceedings as to the bidder’s rights. Shipley v. Shamwell, 41 App.D.C. 267, Ann.Cas.1915A, 1148; Stroup v. Raymond, 183 Pa. 279, 38 A. 626, 63 Am.St.Rep. 758; 10 R.C.L. § 118; The St. Paul (C.C.A.) 262 F. 1021; Aultman v. Humphrey, 8 Kan.App. 2, 53 P. 789; 17 Cyc. 1285.

For lack of jurisdiction, the writ of error is dismissed.