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Levin v. Baum


decided: April 8, 1975.


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.

Author: Stevens

STEVENS, Circuit Judge.

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 final decision, reviewable by appeal or by writ of error under the acts of Congress.

154 F. at 622.

The value of Morrison as precedent for our decision here is undermined, however, for several reasons. First, in Spangelo a later Eighth Circuit panel reached the opposite conclusion, albeit without referring to Morrison. Second, although the language in Morrison suggests that an interlocutory appeal from an order vacating a confirmation and ordering a resale is within the jurisdiction of the courts of appeals, such were not the facts in that case. The purchaser did not sue out a writ of error until after the second sale had been held and its results confirmed by the lower court. 154 F. at 619. Thus, there were no further proceedings pending below, and the decision appealed from was undeniably final. Third, the general principle set forth in Morrison -- that any decision completely determining the rights of a party is a reviewable, final decision -- is not a correct statement of the law today, regardless of its accuracy at that time. An order granting partial summary judgment against less than all defendants in a suit does not become reviewable at the behest of such defendants in the absence of a Rule 54(b) determination, for example, even though it completely determines their rights. See Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 100 L. Ed. 1297, 76 S. Ct. 895. Thus, the fact that an order vacating confirmation arguably terminates the rights of the initial purchaser does not necessarily mean that a "final decision" has been rendered in the district court when a resale has been ordered. Finally, Morrison made no reference to Butterfield, the relevant Supreme Court case authority.

The 1913 decision of this circuit in the Investment Registry, Ltd. case also appears to rely on a rationale which could not be squared with Rule 54(b) today. In that case the court held that the order setting aside a foreclosure sale and ordering a resale was final as to the purchaser-appellant before the court. Judge Baker's opinion makes this point clearly:

A decree setting aside a sale on foreclosure and ordering a resale confessedly does not end the case. That continues with all the parties in that were in before the sale. But the bidder at the sale becomes a new party; the acceptance of his bid gives him the rights of a purchaser unless legal objections to confirmation can be shown; and the decree which puts him out of court as a party and terminates his asserted rights as a purchaser appears to us very clearly a final decree as to him.

212 F. at 603 (emphasis added).

Although the Court cited the earlier Supreme Court decision in Butterfield, Judge Baker's opinion does not clearly explain why that case was not deemed controlling.*fn8 Under these circumstances we feel compelled to follow the Butterfield holding.*fn9 For while the Investment Registry, Ltd. opinion correctly noted that orders granting confirmation are appealable as final decrees, it does not follow that orders vacating a prior confirmation and ordering resale enjoy the same status. In such a case, the entire proceeding is still pending in the district court.

We believe a correct interpretation of the requirement of finality in § 1291 requires us to hold that successful bidders, such as Grossgold, may not appeal a subsequent vacation of a confirmation order until after the resale takes place and is itself confirmed.*fn10 In this way the important federal policy against piecemeal appeals is respected,*fn11 and all objections to the proceedings below may be heard in an orderly and thorough manner. Another reason for finding the instant order nonfinal is that, should Grossgold be the successful bidder at a second sale, the need for any appeal may well be obviated.*fn12

We recognize, as the government argues, that our holding may mean that the purchaser at a second sale may be "purchasing a law suit" because the first purchaser's claims of ownership will not yet have been ruled upon by an appellate court. Nevertheless, we believe our result is the desirable one, not only because of the savings in judicial resources it engenders, but also because of the considerable delay in the conduct of the resale, with all of the attendant uncertainties with respect to the value of the property, that it obviates.

Consequently, we hold that a purchaser at a judicial sale may not appeal the vacation of the confirmation of that sale until after the confirmation of a subsequent resale.

The appeal is dismissed for want of jurisdiction.


The appeal is dismissed for want of jurisdiction.

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