Appeal from the United States District Court for the Northern District of Illinois, Eastern Division - No. 72 C 556 Bernard M. Decker, Judge.
Hastings, Senior Circuit Judge, and Stevens and Sprecher, Circuit Judges.
Nathan Grossgold, the successful bidder for a promissory note at a judicial sale, appeals from the order of the district court vacating its prior confirmation of the sale and ordering the note resold.*fn1
We are faced at the outset with a question concerning our jurisdiction to entertain this appeal. Specifically, is an order of the district court vacating a prior confirmation of a judicial sale a "final decision" within the meaning of 28 U.S.C. § 1291?*fn2 While the government has argued that such an order is final and Grossgold, the appellant, obviously believes it is, we have the obligation to scrutinize the record independently to determine whether our jurisdiction is properly invoked.*fn3
In Butterfield v. Usher, 91 U.S. (1 Otto) 246, 23 L. Ed. 318, the purchaser at a judicial sale conducted pursuant to a decree of the Supreme Court of the District of Columbia sought review of an order of that court vacating its prior confirmation and ordering the property resold. Rev. Stat. § 705 (1873) provided that an appeal lay from a "final decree" of the Supreme Court of the District of Columbia to the United States Supreme Court if the matter in dispute exceeded the sum of $1,000. In dismissing the appeal for want of jurisdiction, the Court held:
The decree here appealed from disposed finally of a motion made in the case, but not of the case itself. It simply set aside one sale that had been made, and ordered another. A decree confirming the sale would have been final. But this decree is analogous to a judgment of reversal with directions for a new trial or a new hearing, which, as has been often held, is not final.
91 U.S. (1 Otto) at 248.*fn4 After commenting on the New York practice which allowed appeals from interlocutory orders, the Court added:
But our jurisdiction upon appeal is statutory only. If some act of Congress does not authorize a case to be brought here, we cannot take jurisdiction. Appeals cannot be taken to this court from the Supreme Court of the District, except after a final decree in the case by that court. The decree in this case not being final, we have no jurisdiction.
Ibid. The Court stated clearly, however, that its holding would not preclude a purchaser from appealing a decree affecting his interests "at a proper stage of the case."
Subsequent decisions of the courts of appeals, following Butterfield, have also held that a district court order vacating a judicial sale confirmation and requiring a resale is not final for purposes of appellate review. See Dikeman v. Jewel Gold Mining Co., 2 F.2d 665, 666 (9th Cir. 1924);*fn5 Spangelo v. Northern Dakota Ry. Co., 276 F. 26, 27 (8th Cir. 1921); The St. Paul, 262 F. 1021 (2d Cir. 1919), cert. denied, 252 U.S. 578, 40 S. Ct. 344, 64 L. Ed. 725. See also The East Hampton, 48 F.2d 542, 544 (2d Cir. 1931).*fn6
There is some contrary authority; the government relies upon the decisions in Morrison v. Burnette, 154 F. 617 (8th Cir. 1907) and Investment Registry, Ltd. v. Chicago & M.E.R. Co., 212 F. 594 (7th Cir. 1913).*fn7 In Morrison, the United States District Court in the Western District of the Indian Territory had set aside a prior confirmation of a judicial sale of mineral rights and ordered a resale. The purchaser at the first sale sought review, and the Eighth Circuit concluded that it had jurisdiction over the appeal:
The order which avoided the sale and the lease to the appellants deprived them of all right, privilege, and opportunity to secure or enforce the lease which the guardian had made to them. A decision which completely determines the rights of parties in the pending proceeding, who are not jointly liable with others, is a ...