Heid v. Ebner, 133 F. 156

Heid v. Ebner

133 F. 156 | 9th Cir. | 1904

MORROW, Circuit Judge

(after stating the facts).

The errors relied upon by the defendant are the action of the trial court in sustaining plaintiffs’ demurrer to defendant’s answer, and in entering the default of the defendant for failure to amend his answer. . Defendant’s answer consisted of two parts': First, a denial of the material allegations of the complaint; and, second, a defense setting up new matter.

The demurrer to the answer was general, oh the ground that it did not state facts sufficient to constitute a defense. Section 68 of the Code of Civil Procedure of Alaska (Carter’s Codes, p. 158, 31 Stat. 343, c. 786) provides that “the plaintiff may demur to an answer containing new matter when it appears upon the face thereof that such new matter does not constitute a defense or counterclaim.” This provision is identical with that of section 78 of the Code of Civil Procedure of Oregon, from which Code the Alaska Code was copied. In Toby v. Ferguson, 3 Or. 28, the Supreme Court of Oregon had before it an action for false imprisonment. The defendant had denied some of the allegations of the complaint, and had made further answer. The plaintiff demurred to this further answer. The court found that a portion of this further answer was well pleaded and amounted to a defense, and that, as the demurrer struck at the whole of the further answer, it should be overruled. In the present case the demurrer was to the whole of the answer, and should have been overruled, first, because the answer denied the material allegations of the complaint, and to that extent was good pleading; and, second, because the demurrer was not directed to the new matter set up in the answer, as required by the Code.

The order of the court sustaining this demurrer recited that the court treated the demurrer also as a motion to make the answer more definite and certain. But this recital did not dispose of the issue raised by the general de*303nial of the answer, nor did it confine the demurrer to the new matter in the answer. Moreover, the direction of the court that the defendant should make his answer more certain, by alleging and showing the issuance and levy of execution and sale thereunder, and the steps necessary to the validity of the sale alleged in the answer, was error. 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 (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.” In the present case, where the sale under which defendant claims title was not directly attacked on equitable grounds, but where the demand was merely that the defendant should set forth the nature of his title, the answer, containing averments of the judgment, execution sale thereon, confirmation thereof, and the execution and recordation of the marshal’s deed to the property, under which he claims title, was sufficient.

It follows, therefore, that the default judgment was improperly rendered. The judgment is reversed, and the court below directed to set aside the default, overrule the demurrer to defendant’s answer, and proceed with the trial of the cause.