*1 PETERSON, Appellant, HILDA M. v. Plaintiff and personal rep- BOZEMAN, N.A., OF MONTANA BANK STUBLAR, DE- THE ESTATE OF GEORGE J. resentative OF McMillan, A. CEASED, Defendants Warren Respondents. No. 83-523. Submitted June 1984. Aug. Decided 1984.
Rehearings Sept. Denied 20 and
Nash & Bozeman, for Donald A. Stublar. argued, Nash, Bozeman,
Nash & for Mon- Michael Nash tana Bank and Stublar. argued, Frost, Frost, Bozeman, for
Wellcome & Albert McMillan. Opinion
MR. SHEEHY JUSTICE delivered Court. 60(b),
Hilda an action Rule brought M. Peterson under M.R.Civ.P., Court, Dis- Eighteenth in the Judicial District trict, declaratory for relief from default County, Gallatin prop- of Peterson’s judgment subsequent sheriff’s sale erty. summary against The District Court entered grounds Peterson that default was res on was a col- judicata, independent and that Peterson’s action upon lateral default judgment. attack appeal principles judicata We hold on res that apply ob- collateral attack do not has never tained Peterson because that 60(b), final; an Rule become action under M.R.Civ.P., declaratory relief to Peterson lies to afford and, here; we remand this the circumstances described in- proceedings to for with cause the District Court further declaratory to grant structions to relief Peterson. 14, 1976,
On Hilda M. Peterson as seller entered October A. Mc- property into a for of real with Warren contract sale principal On bal- buyer. Millan as November approximately to was ance due on the contract Peterson $99,000. duly recorded. Also on November The contract was 1, 1981, an an- required pay Peterson McMillan was payment $9,912. nual had to sell to property agreed
The real which Peterson to a mort- subject was McMillan under contract sale deceased, Stublar, had T. who loaned gage George now $26,000. paya- note signed promissory Peterson by a loan secured ble to which recited that Stublar subject of the mortgage which was the real estate The mort- contract sale between Peterson and McMillan. *4 in Mc- recognized was gage duly was Its existence recorded. the real estate. purchase Millan’s contract in 18, complaint District 1981, On filed a June Stublar 27580, Peterson, nonpay- alleging cause No. against Court in that action did not promissory ment of the note. Stublar seek mortgage, foreclosure of the the note set although forth in his complaint contains a reference to the fact that it is secured on mortgage property. real 24,
On July 1981, on the en- note was tered the District against Court the sum of $26,000 plus attorneys $3,500 related fees of and costs.
On August 5, 1981, a writ of execution was issued on the July 24, 1981 judgment. No return of that writ of execution has been made to the District Court. 1,
On September 1981, an alias summons cause No. 27580 was issued the clerk of the court and on Novem- 23, 1981, ber judgment by another default was entered the District Court cause No. favor of J. George Peterson, Stublar $28,919.48, this time for which interest, included accrued plus attorneys related fees $3,500 and costs.
When the 1, alias summons September 1981 had been Peterson, served on she consulted with a attorney, Bozeman and he appearance entered an on her behalf cause No. filing a motion to dismiss. The motion to dismiss overruled, was given Peterson was days 20 additional plead 5, beginning 26, 1981, October 1981. On October Stublar health, filed an affidavit of ill requesting cause be expedited. 2,1981, On November Peterson’s attor- ney not appearing, granted the court expedi- motion for tion and ordered that Peterson’s answer be filed within days. three The court set trial for November 1981. On November appeared Peterson’s counsel before the District Court. He indicated that Peterson had no defense action, since the amount was due and un- paid. time, At that why District Court asked Stublar was not proceeding to foreclose on the mortgage, and Peter- son’s counsel stated “That’s what I wondering.” am District Court entered judgment against a second default Peterson on November meantime, 1, 1981, pay- November an annual
ment on the contract for sale of real estate of *5 due from McMillan to Peterson. McMillan did not make payment, telephoned the but instead asked and permission period the a payment hold off on for of time. 23, 1981,
On November a of was is- second writ execution sued out of the Court. writ District The second refers 24, 1981, of judgment July and not to the of No- vember second writ directed the sheriff levy upon property judg- and execute the of defendant on $28,919.48, ment of total plus interest and costs to the $38,993.86. amount of not The second writ of execution was returned District Court the sheriff until after this action for declaratory relief had been filed. execution,
Apparently second a sheriff’s under the writ of sale was held on about 1981. At sheriff’s December sale, McMillan, purchaser Warren under the contract Peterson, in the purchased with Peterson’s seller’s interest $39,000. contract for sum of be- deed for the McMillan thus for came the owner of the for sale to himself and contract $39,000 bought rights the sum of contract seller’s to a $99,000. approximately on which he at the time owed 29, 1981, On December Montana Bank of Bozeman was appointed personal representative of the estate of of George J. do not in this record the date Stublar. We find Stublar’s death. February 19, against
On this Peterson filed action Bozeman, of Representative Montana Bank as personal of McMillan, Stublar, the estate of J. Warren A. George and declaratory 60(b), Peter- for relief under Rule M.R.Civ.P. action, son, separate judg- independent this demanded (1) sale against declaring ment the defendants sheriff’s (2) void; McMil- declaring of December 1981 to be (3) voluntary; declaring the payment lan’s to the sheriff was (4) satisfied; compensatory dam- of execution for writ to be (5) $50,000; declar- ages punitive damages and and, (6) terminated; for ing McMillan contract sale attorney fees. including costs disbursements declara- denying Court It is from District tory relief appeal that this ensued. earlier,
As we indicated the District Court in granting summary judgment determined that the default in District Court cause res judicata, No. 27580 was 60(b), Peterson’s action for relief under Rule M.R.Civ.P., collateral attack the judg- constituted a incorrect, ment in cause grounds No. 27580. These are be- here, cause on the record judgment against the default Pe- terson has never become final.
The default cause No. was entered *6 against Peterson after she in appeared by had the action Entry counsel. of default is in judgments controlled Mon- 55(b), by tana Rule M.R.Civ.P. If ap- a defendant has not peared action, in an the empowered, clerk of the court is upon request of plaintiff, the upon affidavit of the due, amount to enter judgment for that amount and costs against the defendant after appear. his default for failure to 55(b)(1). If, Rule however, party the in appeared has the action, then the judgment of by default must be entered the 55(b)(2). court under Rule ap- When the defendant has peared in person counsel, either additional duties then upon devolve party the entitled to the judgment.
“An appearance prevent party does not becoming a from in default. But under the party proper rules a who enters a appearance, although may he in become default because of plead failure to or otherwise defend within time re- the quired by rules, the is entitled to the same notice of the proceedings taken party and the acts done as a who is not in default. The rules make general no distinction between a special appearance. party, ap- Thus a makes an who pearance defaults, but proceed- is entitled to notice of all ings taken and acts in party done the action. But a who is in appear default for failure to is not entitled to notice of any Rule proceeding provisions taken or act done. The 5(a), papers the requiring pleadings serviced of and other upon every party appear, in failure to are not default for supplemented by provisions reinforced and of two other important. rules in is Thus covering situations which notice 55(b)(1) clerk, request Rule of the permits upon defendant, enter a plaintiff and without notice to the to (not a defendant an infant or judgment against default to incompetent person) who has been defaulted for failure appear, when the plaintiffs a sum or for claim is for certain by computation certain. Rule a sum which can be made 55(b)(2) in de- judgment covers all other cases which requires fault is entered. It service of a written notice application upon party default has in the appeared he whom sought is if action; and that default be entered 77(d) requires mail notice of court. And Rule the clerk to every of an not entry party order of who in A an appear. party ap- default for failure to who makes pearance thus of the action. progress receives notice of the (1964) Paragraph . . .” 2 Moore’s Federal Practice 1337-8 omitted.) 5.505, (Footnotes (Emphasis original.) counterparts The rules Montana the federal follow M.R.Civ.P., 5(a), provides that no ser- respects. these Rule ap- parties for failure vice need be made pear, party appears who is entitled all but otherwise a set the rules. Rule requirements service out *7 55(b)(2), counterpart, requires a written as does the federal default to be application judgment by notice of hearing application. to on the days prior served three of the may That here the order given notice have been 17, 1981, setting trial three Court dated November District 77(d), M.R.Civ.P., requires that immedi- days later. Rule ately entry an the clerk upon judgment, of order or party who entry “upon shall a each serve notice of Big v. Spring In appear.” not default for failure to Reservation Indian Tribe Blackfeet Blackfeet of (1978), 655, if 258, we that 573 P.2d stated Mont. motion, he of is entitled a notice party appears filing subsequent proceedings. all the judgment
Respondents this case claim against Peterson in cause No. 27580 has become final and filing appeal expired. the time for an However, has the clerk entry of the District Court has not mailed a notice of judgment required by 77(d), Rule nor have the respondents caused notice; the clerk to send such nor have respondents entry judgment served notice of them- judgment open situation, selves. In that the default is still appeal, Packing Company Pierce v. District Court (1978), 50, 177 Mont. 579 P.2d and the is not purposes filing judg- final for the a motion for relief from 60(b). ment under Rule entry
Since in the default
case notice of
appeal
served,
has not been
the time for
is still
open,
(Rule
post-trial
59(b)),
as is the time for
motion
judicata applies only
the default
is not final. Res
judgments
to final
or to orders which are intended to be
Murphy
(Mont.
Corporation
final in their
Lien v.
nature.
1982),
Rep.
[201
488,]
Mont.
2252;
656 P.2d
39 St.
(D.C.
1981),
Boucher
F.Supp.
v. Dramstad
Mont.
604;
Hydro
Western Montana Production Credit Association v.
ponics,
(1966),
Inc.
147 Mont.
For the same reason the defense of collateral attack is not respondents prevent available relief to Peterson 60(b). under Rule supporting summary its memorandum of decision its
judgment, recognized the District Court that the issue of posed by law her action was whether the sheriffs sale and execution of December 1981, was void and of no force and effect. The District opin- Court never came to consider that issue because of its judicata principle ion that res and the of collateral attack applied. proceed problem
We now to consider the second in this 60(b), case, whether an M.R.Civ.P., action lies under Rule to set aside the sheriffs sale the circumstances described in this case. adopted system,
Rule 60 the federal court *8 46
by us, in might order that be accom- justice substantial plished. 60(b), lan- early part We find in Rule of its the upon may relieve guage, grounds six different which a court party a from a There is a judgment, proceeding. order or stricture, however, proceed- order in that or judgment, final, ing grounds the six justify must be relief under 60(b) However, then set out. end there. Rule does not recognition There is a residual clause which is a broad power this provision: inherent to a court. It contains . . power This rule not limit the court does a from a party entertain an action to relieve order, judgment, to a de- proceeding, grant or or to relief may required personally fendant not notified as be actually by law, upon or to a for fraud set aside court.” “fi- include word
The broad residual clause does not order, its nal” “judgment, proceeding” before judg- own is not to a language, simply the relief limited is a ment. We determine that a sheriff’s sale execution circumstances, under “proceeding,” proper which 60(b). may may “grant court under Such relief relief’ Rule granted equita- be under the residual clause on basis (1983), 60-371, principles. ble Federal Practice Moore’s Paragraph 60.37. “actually per- not
The record that Peterson was indicates required by sonally may notified be law” either the sheriff’s sale. judgment, default or of in con- guilty procedural is number of errors Stublar of a subsequent with the sheriff’s nection application sale. notice of Stublar failed to serve written prior hearing days for default at least three 55(b). 3-day application. on such Rule addition to mail, 55(b), provided in Rule if the service was notice days no- Peterson’s counsel was entitled to an additional re- 6(e), tice Rule give under M.R.Civ.P. Failure as a seri- quired generally regarded by notice is the courts times error procedural though ous at irregularity, held to be harmless when considered with conjunction other circumstances. 6 Moore’s Federal Practice 55-57 *9 (1972), Paragraph 55-05[3].
There are problems further proceedings by with the taken Stublar in the original sheriffs sale itself. The writ of exe- cution, 24, 1981, issued on the judgment July was never returned. The writ of execution issued after the judgment 23, 1981, November does not refer to the judg- second ment, 24, but rather to the judgment July Again the return of the sheriff as to the second writ of execution was not made to the court days within the 60 required by 25-13-404, Section If MCA. the sheriff’s sale is to be re- garded as a sale of an interest in real property, the clerk of the District Court here does not have a returned execution to record in connection with the real property interest as required in 25-13-405, Section MCA. Although counsel for Stublar maintains that Peterson’s interest as a seller of a contract for personal deed is property, pre- he nevertheless pared a certificate of sale property for real under Section 25-13-711, MCA.
The second default judgment of 23,1981-, November taken Stublar, by improperly compounded the interest due on the promissory note.
The extension of note and mortgage executed Hilda M. Peterson and George 22, 1980, J. Stublar January on in- provision cluded the that pay Hilda would to George inter- $2,210 est in the sum of 1, 1979, until November and then an additional sum of interest of January until $709.48 1980. Thereafter the note and mortgage to bear interest per $26,000. at 12% annum on the The total of those $2,919.48, two interest sums was added to the judgment obtained Stublar on November 1981. At the time of sheriff, the sale on execution Stublar collected interest on the full amount due and ow- ing, including $2,919.48 represented which an accrual of interest. This was provision contra to the of Section 25-9- 205, MCA, compounded any interest must in not be judgments or when are calculated. manner form in No. 27580 Court file cause Our review of the District by Stublar which was obtained reveals that fees, $26,000, attorneys 24, 1981, July plus as a judgment It is still docketed has never been vacated. addition, ob- the second Court. District on November tained Stublar cause No. 27580 $28,919.48 and remains for the sum of docketed in the Peterson’s interest Although full force and effect. at sheriff’s property has been sold Stublar mortgaged sale, en- partial full satisfaction of has been no lien remains Thus the tered cause No. 27580. may hold at any property that Peterson outstanding against present time. 22, 1982, indepen- begun had her On March after Peterson *10 February dent action for relief from 23, 1981 19,1982, issued on November the writ of execution Attached in No. 27580. was filed in the District Court cause to Warren certificate of sale to the writ of execution is a 2, 1981; sale notice a sheriff’s McMillan dated December 1981, sale on Decem- 24, execution setting dated November dated De- 1, 1981; sale the sheriff ber and a return of 2, 1981, of the District not filed with the clerk cember but 22, 1982. Court until March eventually sheriff that was return of the sale no recitation respects. in It contains is deficient several
filed execu- in for the sale on preparing did of what the sheriff attached, is there sheriff’s sale is Although tion. a notice of record cause any sale or in court in the return of nothing was where notice indicate when and No. 27580 that would 25-13- required Section by the sheriff of the sale as given opin- an Thus, attorney give if were asked to MCA. an purchased merchantability property ion as to the be execution, attorney would the sale and McMillan at on court of title based from an abstract unable to determine sale had of the sheriff’s statutory notice that the documents law, in the course required manner given been good practice of would determine title be to unmerchantable.
We note also that return of execution the sheriff money paid recites that the sale he collected over, McMillan, creditor, not to the but to purchaser at sheriff’s sale. equity jurisdiction case
This addresses the of this duty Court. We have a to determine all of the issues this of complete City justice. case and to do Hames v. Poison (1950), 469, 477, 123 Mont. 215 P.2d 955. We could at point this remand the cause to the District Court for fur proceedings, ther since the here is not obtained final, so that the District Court could determine relief to be 60(b). granted duty matter, under Our Rule this how 3-2-204(5), ever, is MCA, defined in Section which states: equity proceedings eq- “In cases and in matters and of an supreme questions nature, uitable court all shall review arising upon presented of fact record, the evidence in the presented by specifications particu- whether the same be alleged lars which the evidence to be insufficient or questions not, same, law, and determine the as well as good taking unless for cause a new trial or the of further evidence in the court below be . . ordered. .” Stephens (1908), v. 36 Mont. 93 P. we Trafton purpose expedite stated the of that enactment was to final parties in cases where the were to not entitled by jury, put litigation, trial an end avoid the necessity of new trials. 60(b), earlier, M.R.Civ.P.,
As we stated under Rule an *11 “proceeding may grant execution sale is a for which a court relief to in a defendant an We rea action. find grant proceedings son to such relief where ob here the faulty, tain the default are Peterson was not given purchase price sale, actual notice of the sheriff’s inadequate, at the sheriff’s sale is and other circumstances justify relief. appeared
From time that counsel at the Peterson’s judgment hearing on he November neither any nor Peterson had further notice from Stublar as to application happening was what the case. No notice upon served or her coun- for default was Peterson Although argument sel. counsel for on indi- oral posted in three cated that notice of the sheriffs sale was separate places County, no indi- Gallatin court record conducted, cates this as a fact. When the sheriffs sale was personal the contract for sale of real estate was treated property. nearly upon $99,000, it It had a balance due buyer $39,000 but was sold for the sum of to the contract place. who owed are the first These factors price enough, considering inadequacy purchase of the at sale, the sheriffs to set aside the execution sale. Appeals noted in Mason v. Wil- Court of of Arizona (1977), Ariz.
son 568 P.2d 1155. may “A set court order an execution sale aside the ba- purchase grounds: price First, sis of two received at the may inadequate sheriffs con- sale be so as to shock the (Cit- justify setting sale, science of the court aside inadequacy ing authority). Second, where is an there price might grounds setting which in aside itself not be eq- slight sale, additional circumstances or matters of may uity justify. . so . .” Mason,
In an the Arizona court set aside execution appeared proper given sale when it notice had not been upcoming sale. debtor of the sheriffs attorney although case, sent letter to Peter this Stublar’s advising held in con son her that a sheriffs sale would be execution, nection with the first writ of no second letter personally given to Peterson or her attor notice either ney respecting 1, sale for December sheriffs set required process, here, The situation in the interests of due As the Arizona court said actual notice to Peterson. Mason: required given spite to be
“Whether notice was Supreme U.S. statute is matter of constitutional law. The
51
Court
opportunity
has held that notice and
to be heard are
Mullane v.
Central
requisites
fundamental
process.
of due
Co.,
Hanover Bank and Trust
U.S.
70 S.Ct.
94
L.Ed.865, (1950). The
Mul-
general
emerges
rule that
from
lane is that notice
by
publication
enough
respect
is not
with
to
person
whose
very
name and address are known or
eas-
ily ascertainable
legally protected
and whose
interests are
directly
by
affected
proceedings
question. Under the
here,
circumstances
we disagree
appellee
right
with
that a
to notice is a ‘frivolous’
Appellants,
claim.
as well as the
Pekruls, by virtue
respective
of their
prop-
interests
erty
directly
were
affected
the proceedings and should
notice,
have received actual
(citing authority)”
And, in respect
inadequacy
price
as a basis for set-
ting
sale,
aside execution of sheriff’s
see
cases collected
McCartney
v. Frost
(1978),
A.L.R.4th 794. See also
282 Md.
631,
In fashioning remedy appeal, this we take into account McMillan, in making purchase at the sher sale, iff’s borrowed from the bank order to meet purchase price. We adjust can the matters par between the here, ties since all are before the proper Court. It seems say party that no in this case entitled to recover attor neys any fees from party. adverse
It also proper seems to state that on this record we find no ground recovery parties the adverse relief, on her several claims. In declaratory addition to Pe- terson seeks recovery of in compensatory damages $50,000 exemplary damages, and an order that McMil- lan’s contract for sale be terminated reason of his de- fault. Although appears it that at times Peterson’s adversa- ries, counsel, the parties and erringly, nothing acted we find in the record to they they indicate did not believe were act- ing in accordance with legal rights judg- their to collect a Peterson, ment that had been obtained by and on McMil- part, purchase lan’s the contract for sale which was offered the sheriff at the execution sale. principal appeal argued was that issue Peterson on ground the sher-
the default was void and on that that the de- iff’s sale must be set aside. Peterson contended judgment ac- because the default fault was void foreclosing prosecuted an action tion was not mortgage *13 property. that on the real Peterson contended only MCA, 71-1-222, is one action for under Section there by mortgage is and that the collection of a debt secured necessary issue foreclosure. It is not for us reach that however, case, here in this of our determination because any final and in not become that the event has sheriff’s should be set aside. the sale purpose, moreover, in our set There would be little against ting Her coun aside the default Peterson. owed sel admitted to the District Court at the time that she money note, the amount the on the and had no defense to remedy fashioning thereof. We in the take that into account in this case. summary
Accordingly, granted by the District against and re- Court Peterson this cause is vacated District Court for en- versed; the cause is remanded try declaratory judgment of Peterson with of a favor these instructions:
(1) 2, The sheriff’s certificate of sale dated December any selling in- Peterson’s and other document of the sheriff are annulled terest in the contract for deed to McMillan and vacated.
(2) Peterson for of real estate between The contract sale McMillan is reinstated. (3) payment on with Peterson credit McMillan shall principal for contract sale due on November ($39,000, $3,500, $35,500 real sum of less estate fees). attorneys as awarded
(4) applied McMil- Peterson to the After the credit remaining principal due on said contract, balance lan payable by at the McMillan shall accrue interest contract of 8 xh per rate % annum from and after the date of remit- titur of County this cause from this Court to the Gallatin District Court. payments McMillan shall make annual under the contract of beginning November and continuing provided thereafter the contract sale of real estate until purchase price balance of the together with all fully paid accrued interest shall have been him on or before All remaining November terms of the said contract for sale of real estate shall re- be and main in full force and effect as between and Mc- Millan, Peterson, and subject provisions thereof.
(5) Summary judgment shall be entered the District Court in favor of the Montana Bank of Bozeman and Estate of George deceased, J. Stublar and Warren A. Mc- Millan, remaining Hilda M. Peterson on her claims in this action.
(6) judgments outstanding against Peterson and favor of George J. Stublar in civil cause No. 27580 in the County Gallatin District Court par- shall be satisfied *14 ties by order of the District Court.
(7) No costs shall be awarded in this action. MR. HASWELL, CHIEF JUSTICE and MR. JUSTICES HARRISON, WEBER, GULBRANDSON, SHEA and concur. SHEEHY,
MR. JUSTICE specially concurring: I pleased am accept the “philosopher king” accolade of conferred our jurist. My always fellow Irish father main- tained he was descended from kings Kerry. the of He would pleased be to know again supersede peerage, we now the and can sit above the salt.
I like being philosopher also. isHe one who Greek definition is a judges lover of wisdom. The task of wise always of, to make ought the law what it to be—the servant of, tyrant not the humans. MORRISON,
MR. JUSTICE dissenting: respectfully majority opinion. I the dissent from here, plaintiff At outset must made clear that the the it be Peterson, seeking Hilda relief M. did not file motion George J. 60(b) M.R.Civ.P., of under Rule in the case Peterson, Eight- Stublar v. Hilda M. District Court in and for District the State of Montana eenth Judicial of County Gallatin, of No. that case the cause 27580. for Stublar obtained a judgment $2,919.48 of amount together with accrued interest the $28,919.48 January from 12% on the sum of plus interest 22, 1980, date, of and attor- together with costs $22.80 fact, of conclu- neys findings fees the sum of The $3500. law, of of were contained sions the court counsel. Coun- one were mailed to Peterson’s document and case, showed that deposition, part sel’s of the record Thereafter, counsel. document received was ap- of No purposes became final for satisfaction. Therefore, peal supersedeas was taken. No was filed. sheriff’s sale which followed could be held. incorrectly
An which identified execution was issued July, simply This day of 24th of 1981. was date above, entered The referred to a clerical mistake. 1981, Gary clearly judg- on November was Judge 23, 1981, execution, ment dated November upon which Thereafter, sheriff’s notice of appropriate was issued. personal in the form the posted. property, sale was be- real dated October contract sale of estate McMillan, sold to McMillan tween Peterson and $39,000. dep- A made the sum of return sale was 2, 1981, day following one uty sheriff dated December proceedings No from these sale December 1981. relief in cause was instituted No. *15 , declaratory ac-
Hilda M. Peterson instituted a
of the State of
tion in
Judicial District
Eighteenth
Gallatin,
Montana,
County
District Court
for
of
upon the
collateral attack
making a
cause No. DV-82-132
This collateral attack
No. 27580.
judgment entered
cause
premised upon
was
the idea that Peterson could not waive
right
her
upon
to insist
foreclosure. This
course is not the
defense,
law. Peterson could have set
as matter
forth
“single
action” statute and
to do so cannot be
failing
VandeVeegaete VandeVeegaete,
v.
complain.
heard
Savings
Albertson,
State
Bank v.
52;
P.
75 Mont.
Mont.
This is not case where relief from a can be accorded on the basis of of juris- fraud on the court or lack diction over person subject or matter. Peterson was Peterson, Stublar v. before the court in cause No. represented counsel. Counsel advised the court there was no defense and therefore the court judgment. Judg- entered ment was upon served Peterson’s counsel. The judgment final. appeal No was taken from judgment. No mo- 60(b) tion for Rule relief was filed in that case. The majority raises the finality issue of lack of apparently relying upon authority that entry failure to serve notice of of judgment stays the time filing appeal. a notice of However, that issue is not this before Court. The issue here is whether the entry sale which followed the of a was a can, valid sale event, and whether the sale in any be attacked in proceeding. this
The opinion majority turn upon seems to the idea that an independent action can attack in an technical defects exe- 60(b) cution sale on the basis of language quoted from Rule states, part: which relevant . .
“. This rule power does not limit a court to en- independent tertain an party action relieve a from a order, judgment, or to a proceeding, grant relief de- actually fendant not personally may required notified as be law, upon or to set aside a for fraud court.”
First, it be grant should noted that not language this does any rights independent in an court action. lan- guage simply power nothing states the rule shall limit the of a court to entertain an action. *16 “proceeding” clearly An can attack independent action be notified party an required aggrieved where the law was a fraud or where there “proceeding” and was not on the court. action as indicated
This for an is not a case (1) require not did opinion because the law majority which was of the sale personally that Peterson be notified yet (2) no Worse proceeding an in there was rem fraud. argu- of briefs or without benefit this new law was made ment the issue. Court raised upon a is, simple,
This collateral attack pure action absolutely no basis case. There is another simply This is another majority. granted relief what the law achieve ignoring indication of this Court equita- to be an conscientiously believe the Court members because taking this action great ble result. risk There argue brief and opportunity for counsel there is no I find the ma- theory Again, relief. granting Court-invented sys- our great at risk to jority “philosopher kings” acting as justice. tem of