author: JAMESON, District Judge: SNEED, Circuit Judge,

text:
    TRAVELERS INSURANCE COMPANY, a Connecticut Corporation, Plaintiff-Appellant, v. M. T. LAWRENCE, Jr., et al., Defendants-Appellants, and Everett R. Langford, United States Marshal for the District of Oregon, Appellee, and Wolfsen M. C. Ranch, a limited partnership, Assignee of Judgments and Purchaser at Marshal’s Sale, Appellant.
    No. 73-1812.
    United States Court of Appeals, Ninth Circuit.
    Dec. 23, 1974.

      John H. Buttler (argued), Cake, Hardy, Buttler, McEwen & Weiss, Portland, Or., for plaintiff-appellant.
    Kathryn H. Baldwin, Atty. (argued), Dept, of Justice, Civ. Div., Washington, D. C., for appellee.
    Before KILKENNY and SNEED, Circuit Judges, and JAMESON, District Judge.

       Honorable W. J. Jameson, United States Senior District Judge for the District of Montana, sitting by designation.

   OPINION

JAMESON, District Judge:

Appellants, the plaintiff and defendants in an action to foreclose a mortgage on real property and the purchaser at foreclosure sale, challenge the validity of a commission of appellee, the United States Marshal for the District of Oregon, in the amount of $75,765, taxed as costs for selling the property pursuant to the decree of foreclosure. The commission was computed pursuant to 28 U.S.C. § 1921. The appeal is from an order overruling appellants’ objections and confirming the Marshal’s commission.

I. BACKGROUND

Plaintiff, Travelers Insurance Company, brought this suit in federal court, on the basis of diversity jurisdiction, to foreclose its mortgage on the “M. C. Ranch” located in Lake and Harney Counties, Oregon. Cross claims were filed by the holders of two subsequent mortgages. A judgment and decree was entered on July 31, 1972 in favor of the plaintiff and the two subsequent mortgage holders for the foreclosure of the three mortgages and directing that the property

“ . . . shall be sold as a unit by the United States Marshal on execution at the Court house door in Lake County, Oregon, after giving notice required by law; . . . that the United States Marshal give to such purchaser a certificate of sale, and after the time allowed by law for redemption, unless said property be redeemed, a deed.”

The court also ordered that the proceeds of the sale be distributed “[fjirst, to pay the costs and expenses of sale”.

On September 17, 1972 the clerk of court signed a writ of execution commanding the Marshal to sell the property “described in the attached judgment and decree as therein directed”. On September 20, the Marshal issued a “Notice of Marshal’s Sale”, prepared by counsel for plaintiff, describing the property and setting the sale for November 1, 1972. As required by Oregon law, the notice was published in local newspapers.

Prior ■ to the sale, the judgments of Travelers and the second mortgage holders were sold and assigned to Wolfsen M. C. Ranch, a limited partnership. The sale was held on November 1, 1972, in Lakeview, Oregon. The Marshal drove to Lakeview the day before the sale, conducted the sale between 10:00 and 10:30 A.M. on November 1, and returned to Portland. Wolfsen was the only bidder at the sale, bidding $5,050,000.00, the approximate amount of the two judgments it held. The Marshal filed his “Return on Execution”, indicating his compliance with the “writ of execution, judgment and decree”. The sale to Wolfsen was then confirmed. No money was paid to the Marshal by Wolfsen or anyone else in connection with the purchase at the sale.

Thereafter, the Marshal filed his “Statement of Costs” in which he claimed his statutory commission of $75,-765 out of the proceeds of the sale pursuant to 28 U.S.C. § 1921. It is undisputed that had the action been conducted in state court (as it could have been) the officer making the sale would have been limited to a fee of $10.00 for conducting the sale, plus $2.00 for making a certificate of sale and $5.00 for a sheriff’s deed.

Objections to the commission were filed by the appellants. In overruling the objection, the court held that the taxation of marshals’ costs is discretionary, but if costs are taxed, the court must follow the formula in 28 U.S.C. § 1921; the Marshal had seized or levied on property and received and paid over money as required by § 1921; and the prescribed fees or commissions apply to judicial as well as execution sales.

Appellants contend that (1) the provision for a marshal’s commission in 28 U.S.C. § 1921 is not applicable because there was no seizure or levy and the Marshal did not receive or pay over any money; (2) under the Erie doctrine the commission is unauthorized because it is in conflict with the substantive law of Oregon, which protects redemption rights by limiting the sheriff’s fee to $10.00 on a foreclosure sale; (3) if § 1921 is applicable, the court had discretion to fix the commission at a lesser sum, or (4) if not, the imposition of a commission bearing “no relationship to the value of the services rendered” was an abuse of discretion.

II. APPLICABILITY OF 28 U.S.C. § 1921

Prior to 1962, the statute establishing marshals’ fees had remained relatively unchanged since its enactment in 1853. The statute read in pertinent part:

“Only the following fees of United States marshals shall be collected and taxed as costs, except as otherwise provided:
“For serving a writ of possession, partition, execution, or any final process, the same mileage as is allowed for the service of any other writ, and for making the service, seizing or levying on property, advertising and disposing of the same by sale, set off, or otherwise according to law and receiving and paying over the money, the same fees and poundage as are or shall be allowed for similar services to the sheriffs of the States, respectively,, in which the service is rendered . . ..” (emphasis added).

In 1962 Congress amended this provision of § 1921 to read:

“Only the following fees of United States marshals shall be collected and taxed as costs, except as otherwise provided:
For serving a writ of execution . . ., $3;
“For the preparation of any notice of sale ... or bill of sale, $3;
“For seizing or levying on property (including seizures in admiralty), disposing of the same by sale, setoff, or otherwise and receiving and paying over money, commissions of 3 percentum on the first $1,000 of the amounts collected and IV2 per centum on the excess of any sum over $1,000. If not disposed by marshal’s sale, the commission shall be in such amount as may be allowed by the court.” (emphasis added).

A comparison of the old statute with the new indicates that the only substantial change made by the 1962 amendment was to substitute a uniform “commission” for the marshal’s services for the provision that the marshal should be paid the fees “allowed for similar services to the sheriffs of the States”. Both expressly provide that the marshal is required to do three things before he is entitled to a commission. He must (1) seize or levy on the property; (2) dispose of it by sale; and (3) receive and pay over money. Appellants contend that requirements (1) and (3) were not met in this case.

Does the sale of real property pursuant to a decree of mortgage foreclosure involve a seizure or levy within the meaning of § 1921? In finding § 1921 applicable, the district court relied on Hill v. Whitlock Oil Services, Inc., 450 F.2d 170 (10 Cir. 1971). In Hill, as in this case, a United States Marshal sold real property pursuant to an order in a foreclosure action. Refusing to grant the marshal’s commission of $117.81 that was subsequently assessed, the lower court held that under Kansas law, the sale was a judicial rather than an execution sale and did not involve a levy or seizure as required by § 1921.

In reversing, the Tenth Circuit agreed that “under Kansas law no seizure or levy was made”, but held that “federal, not local, law applies in the interpretation and application of federal statutes”. Id. at 173. Recognizing that the “controlling consideration here is legislative intent”, the court concluded that in using the words “seizing or levying” Congress intended to include judicial sales. Id. at 174.

The court noted that “ ‘Levy’ is an ambiguous word, with its meaning dependent on the context in which it is used”. Id. It relied on the general definition in the Uniform Enforcement of Foreign Judgment Acts, § 1(c) which defines “levy” as follows:

“ ‘Levy’ means to take control of or create a lien upon property under any judicial writ or process whereby satisfaction of a judgment may be enforced against such property”.

Applying that definition, the court concluded that the Marshal “took control of the land under a court order”, and thereby in effect levied on the land. The court stressed that the “purpose of the pertinent provisions of § 1921 is to reimburse the federal government for services rendered to private litigants by United States marshals” and that the 1962 amendment established a uniform formula for computing the fees. The court concluded that uniformity in the fee structure would be “impossible if the right of the Marshal depends on the fine distinction which state law may draw.” Id.

We agree that in amending § 1921, Congress intended to establish a uniform fee for services rendered by United States marshals. As stated in House Report No. 1724, the purpose of setting a uniform fee was “to increase the charges to private litigants for the services of U. S. marshals”. We agree also that § 1921 prescribes the fees which may be collected for services performed by a United States marshal, including the sale of property. We cannot agree, however, that state law is to be ignored in determining whether the commission prescribed in § 1921 is applicable. The fees assessed pursuant to § 1921 are based on the nature of the services performed by the marshal. Here the marshal was charged with the responsibility of conducting a mortgage foreclosure sale pursuant to a writ of execution.

All parties to this action agree that pursuant to Rule 69(a) of the Federal Rules of Civil Procedure, Oregon law governs the practice and procedures to be followed by the marshal in conducting the sale. See United States v. Yazell, 382 U.S. 341, 355, 86 S.Ct. 500, 15 L.Ed.2d 404 (1966); Custer v. McCutcheon, 283 U.S. 514, 51 S.Ct. 530, 75 L.Ed. 1239 (1931); and Fink v. O’Neil, 106 U.S. 272, 284-285, 1 S.Ct. 325, 27 L.Ed. 196 (1882).

Rule 69(a) provides:
“Process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise. The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held, existing at the time the remedy is sought, except that any statute of the United States governs to the extent that it is applicable.” (emphasis added).

Rule 69(a) and § 1921 are interrelated. Rule 69(a) provides that state procedure shall determine what services the marshal will perform. § 1921 prescribes the fees he may collect for those services. Thus, if state law does not require a levy or seizure to be made when mortgaged property is sold pursuant to a decree of foreclosure, then according to Rule 69(a) the marshal does not make a seizure or levy. Nor should he be compensated for making one under § 1921.

The threshold question here, therefore, is whether under Oregon law a levy or seizure is required in selling real property at a mortgage foreclosure sale. In Oregon, as in most states, a real property mortgage constitutes a lien. See O.R.S. § 88.010. According to Oregon law, a decree of foreclosure “may be enforced by execution as an ordinary decree for the recovery of money”. O.R.S. § 88.060. See Close v. Riddle, 40 Or. 592, 67 P. 932, 933 (1902). That is what happened here. The district court clerk issued a writ of execution directing the Marshal to sell the property pursuant to the decree of foreclosure.

While Oregon generally requires a levy in execution sales, O.R.S. § 23.-410(3), it does recognize a distinction between those cases wherein the property to be sold is already in the control of the court and those cases in which the court has no custody of any property with which to satisfy a judgment. Where real property is already in the custody of the court, Oregon requires no levy or seizure. The rationale for this distinction was discussed by the Oregon Supreme Court in the early case of Bank of British Columbia v. Page, 7 Or. 454, 456 (1879). There the court expressly held that no levy was necessary to sell mortgaged premises upon a decree of foreclosure. The court stated:

“When a judgment, upon which an execution has issued is a lien upon land, it is not necessary that the sheriff should make any formal levy or seizure before proceeding to advertise and sell. The judgment binds the land, which is already in the custody of the law, before the execution issues. The execution comes as a power to enable the creditor to reap the fruits of the seizure already made.
“This same rule should govern the sale of mortgaged premises upon a decree of foreclosure, and when an execution is issued thereon, it is not necessary that the sheriff should make a levy upon the premises before proceeding to sell the same.”

In German Savings & Loan Soc. v. Kern, 38 Or. 232, 62 P. 788 (1900) the Supreme Court of Oregon reaffirmed its holding in Bank v. Page, stating:

“The authorities are uniform that no levy is required under an execution issued upon a decree of foreclosure. Mr. Freemen says that ‘if the sale has been ordered by a court of chancery, in a suit in which all the parties in interest were before the court, there is no need of any levy, for the right to sell the land has attached as a consequence of the proceedings in the suit. In truth, the suit may have been for the express purpose of enforcing a pre-existing lien. If so, the title to he acquired by the sale will relate back to the inception of that lien, and cannot possibly be aided by any levy made after the entry of the decree. Hence, under a decree foreclosing a mortgage, no levy need be made on the mortgaged premises.’ 2 Freem.Ex’ns (3d Ed.) § 280.” 62 P. at 790.

Accord, Lesamis v. Greenberg, 225 F. 449, 453 (9 Cir. 1915); see also Smith v. Dwight, 80 Or. 1, 148 P. 477, 156 P. 573, 578 (1916).

This rule is based on the fact that historically the purpose of a levy has been to subject property to the custody of the law so that a judgment debt- or might not divert it to any other purpose. State ex rel. Coffey v. District Court, 74 Mont. 355, 240 P. 667, 670 (1925); accord, Winslow v. Klundt, 51 N.D. 808, 201 N.W. 169, 171 (1924); R. S. Corson Co. v. Hartman, 144 W.Va. 790, 111 S.E.2d 346, 354 (1959). Here, the mortgage constituted a lien on the real estate and the court already had custody of the property. A further levy or seizure would have accomplished nothing and under Oregon law was unnecessary. Accordingly, the “commission” prescribed by § 1921 is not applicable, since the Marshal was not required to make any levy or seizure in executing the writ.

This conclusion is supported by the common law rule that a levy or seizure is not required in a judicial sale. The distinction in this regard between judicial sales and the ordinary execution sales is well summarized in 47 Am.Jur.2d Judicial Sales § 3, p. 301 as follows:

“The unique characteristics of a judicial sale, as that term is used in this article, would seem clearly to distinguish such sales from execution sales, which are not made pursuant to a judicial order or decree, but under final process, that is, by a writ, issued by the clerk of the court, which does not direct the sale of specifically designated property, does not prescribe the mode of sale, and does not impose conditions on the sale, but merely requires ministerial action by a designated officer to levy on property of a judgment debtor and sell it as prescribed by statute to satisfy a money judgment.”

For our purposes, the most significant distinction between a judicial sale and an execution sale is that no levy or seizure is required in a judicial sale. Mortgage foreclosure sales while often made pursuant to a writ of execution and even termed special execution sales have been treated like judicial sales.

“Thus the rules governing judicial sales, instead of the statutory provisions regulating execution sales, have been applied to a sale in a mortgage foreclosure proceeding under a special execution, since such proceedings give rise to a special case, which is in the nature of a proceeding in rem wherein the decree of the court operates directly on the mortgaged property, and no levy or seizure is necessary to give effect to the judgment.” (emphasis added).

47 Am.Jur.2d Judicial Sales § 3 p. 302 citing Norton v. Reardon, 67 Kan. 302, 72 P. 861, 863 (1903); see also Thomas v. Thomas, 44 Mont. 102, 119 P. 283, 284 (1911).

It appears to us also that the definition of “levy” in the Uniform Enforcement of Foreign Judgments Act, relied upon in Hill, is entirely consistent with our conclusion in this case. § 1(c) states that “ ‘Levy’ means to take control of or create a lien upon property under any judicial writ or process whereby satisfaction of a judgment may be enforced against such property”. Obviously in the enforcement of a foreign judgment, it is necessary to take control of or create a lien upon property in the state where the foreign judgment is to be enforced. But here the lien has already been created upon the specific property sold. The Marshal simply sold the property pursuant to the foreclosure decree. It was unnecessary to take control of or create any lien upon the property.

On the basis of the foregoing analysis of Oregon law, as well as the common law rule that a levy or seizure is not required for a judicial sale of real property, including a sale under a judgment of foreclosure, it is reasonable to conclude that Congress did not intend the percentage formula of § 1921 to apply to mortgage foreclosure sales of real property. Given the value of real property, application of the formula to judicial sales would usually result in excessive fees. Here, under the relevant Oregon law at the time of the foreclosure sale, a $10.00 fee would have been assessed for the sheriff’s services in selling the property. Because the action was brought in federal court, the fee for the same service was over seven thousand times greater, i. e. $75,765.00.

Prior to the 1962 amendment, the marshal would have received the same fee as the sheriff. In establishing the percentage formula in ■ 1962, the Congress projected that the new fee structure would “moderately increase the fees charged to private litigants”. The Congress expressly recognized the “need to avoid raising the cost of litigation in the Federal Courts to a prohibitive level”. H.R.No.1724, 87th Cong.2d Sess. (1962) p. 2. As this case so well demonstrates, to apply the percentage formula to sales of land would impose an unjust burden on the litigants, thus rendering the federal courts an economically unacceptable forum for foreclosure proceedings. We' conclude that Congress did not intend that result.

Reversed and remanded for a determination of Marshal’s fees consistent with this opinion.

SNEED, Circuit Judge,

(dissenting):

I respectfully dissent. While my brothers and I agree that the fee sought to be recovered by the appellee United States Marshal is not commensurate with the usual market value of undertakings requiring similar effort and skill, it is my opinion that this disparity and its adverse consequences to the mortgagor’s equity of redemption should not be eliminated by the interpretation of 28 U.S.C. § 1921 adopted by the majority.

It is undisputed that our task is to interpret properly 28 U.S.C. § 1921. My brothers do this by asserting that if the applicable state law does not characterize what the Marshal did in this case as a “seizure” or “levy”, there can be no “seizing or levying on property” within the meaning of 28 U.S.C. § 1921. There being no compliance with the terms of § 1921, no commission computed as therein directed has been earned. Local law characterization is required, assert my brothers, because Rule 69(a) of the Federal Rules of Civil Procedure directs that procedure on execution, proceeding supplementary to and in aid of judgment, and proceedings on and in aid of execution (one of which, assert my brothers, is the foreclosure proceedings here involved) “shall be in accordance with the practice and procedure of the state in which the district court is held, existing at the time the remedy is sought, except that any statute of the United States governs to the extent that it is applicable.” Rule 69(a) must be given this effect, the majority asserts, because it and 28 U.S.C. § 1921 are “interrelated.” Since Oregon law, the state in which the district court is held, does not characterize a mortgage foreclosure sale as a “seizure” or “levy”, the fee asserted by the Marshal has not been earned. Hence, the district court’s contrary holding must be reversed. What commission, if any, the Marshal is entitled to is unanswered.

The interpretation of federal statutes under a federal system in which there is no all comprehensive federal common law is always difficult because very frequently the jural relations of the parties are rooted in state law. To this law one must look to determine, for example, whether A owes B and the consequences that flow therefrom. Having ascertained these relations the interpreter of the federal statute must then determine whether these relations are those to which the statute, in whole or in part, refers. This is a determination that is exclusively federal. The state law nomenclature is not controlling — at best it is only suggestive, although frequently strongly so. Thus, if under state law A owes B, state law’s mere designation of this relationship as a trust without more does not require that a federal court treat the relationship as a trust for the purposes of applying a federal statute using the term “trust.” Whether the relationship is a “trust” for the purposes of the federal statute is a federal question exclusively.

For reasons that will be set forth below, it is by no means clear that the procedures available to the Marshal consisted exclusively of those provided by “the state in which the district court is held.” Other possibly applicable federal statutes, particularly 28 U.S.C. § 2201, must be considered before Rule 69(a) is permitted to govern solely. Moreover, even if Rule 69(a) were the exclusive sovereign, it is clear that whether the procedure so available to, and employed by, the Marshal amounted to a “seizure” or “levy” for the purpose of 28 U.S.C. § 1921 is a matter of federal law not controlled by the characterization of these procedures by local law. Thus, the initial issue before us is whether the acts taken by the Marshal amount to a “seizure” or “levy.” If so, the question remains whether this characterization is overcome by Rule 69(a). In my judgment the acts of the Marshal in connection with the foreclosure sale do amount to a “seizure” or “levy” and this characterization is not overcome by Rule 69(a).

. As was pointed out in Hill v. Whitlock Oil Services, Inc., 450 F.2d 170 (10th Cir., 1971), the pertinent language now appearing in 28 U.S.C. § 1921 originated in the Act of February 26, 1853, 10 Stat. 161, described in its preamble to be “An Act to Regulate the Fees and Costs to be allowed Clerks, Marshals, and Attorneys of the Circuit and District Courts of the United States, and for other Purposes.” This language, including that pertaining to the sales of vessels in admiralty, was as follows:

For sales of vessels or other property, under process in admiralty, or under the order of a court of admiralty, and for receiving and paying the money, for any sum under five hundred dollars, two and one half per centum; for any larger sum, one and one quarter per centum, upon the excess.
* * *•}: * H-* *
For serving a writ of possession, partition, execution, or any final process, the same mileage as is herein allowed for the service of any other writ; and for making the service, seizing or levying on property, advertising and disposing of the same by sale, set-off, or otherwise, according to law, receiving and paying over the money, the same fees and poundage as are or shall be allowed for similar services to the sheriffs of the several States, respectively, in which the service may be rendered.

This language remained substantially unchanged until 1962. Congress in 1962 consolidated these two provisions, together with another which made its appearance in 1935, relating to deducting fees paid to auctioneers from those payable to marshals, to achieve the present wording of the pertinent portion of 28 U.S.C. § 1921 which is as follows:

For serving a writ of possession, partition, execution, attachment in rem, or libel in admiralty, warrant, attachment, summons, capias, or any other writ, order, or process in any case or proceeding, except as otherwise provided, $3;
******
For seizing or levying on property (including seizures in admiralty), disposing of the same by sale, setoff, or otherwise and receiving and paying over money, commissions of 3 per centum on the first $1,000 of the amounts collected and IV2 per centum on the excess of any sum over $1,000. If not disposed of by marshal’s sale, the commission shall be in such amount as may be allowed by the court. In all cases in which the vessel or other property is sold by a public auctioneer, or by some party other than the marshal or his deputy, the commission herein authorized to be paid to the marshal shall be reduced by the amount paid to said auctioneer or other party.

One of the purposes of this consolidation appears to have been to establish -a schedule of uniform fees not dependent upon those applicable to the sheriffs of the state.

There is nothing in the judicial treatment of the 1853 — 1962 versions of what is now 28 U.S.C. § 1921 or the legislative history of that statute to suggest that the language “seizing or levying on property, advertising and disposing of the same by sale, setoff, or otherwise according to law and receiving and paying over the money” did not embrace foreclosures by judicial sale. In fact, so far as I have been able to discover, no case interpeting the 1853-1962 versions and raising the issue whether foreclosures by judicial sale is included in the above language exists. Undoubtedly, this is partially because the marshals were paid the same as the local sheriffs and, since no more was allowed by the statute, there was no reason for the marshals or the United States to litigate. On the other hand, had either the mortgagor or mortgagee insisted that no fees were payable because the above language did not embrace foreclosures by judicial sales, it is illogical to assume that the marshals or the United States would not have litigated the matter or in an appropriate manner requested from Congress an amendment to clarify the matter. Neither appears to have happened during the entire 109 years. It is highly probable, however, that during much of this period special masters often were appointed to conduct foreclosure sales. The precise extent of this practice is not revealed by the available authorities; but it must be acknowledged that its existence reduced the necessity to confront the issue with which we are here concerned.

Also persuasive of the interpretation I urge is the fact that neither the House nor Senate Report accompanying the enactment of 28 U.S.C. § 1921 suggest that any question concerning the inclusion of foreclosures by judicial sale within the 1853-1962 versions existed. Not a word concerning the matter appears in these Reports. One can not believe that such an issue would have been passed in silence had Congress believed that it existed. It is even more certain that had it existed it would have been brought to the attention of Congress by the Department of Justice prior to the enactment of 28 U.S.C. § 1921 in 1962. Nonexistence is also suggested by the combining in 28 U.S.C. § 1921, of “seizures in admiralty” and the “seizing or levying on property.”

The view that mortgage foreclosures on land by judicial sales were included within the above language of the 1853-1962 versions and within the same language of 28 U.S.C. § 1921 is strengthened when the history of the law of mortgage foreclosures of the states is considered. The most cursory examination reveals that at all times significant differences existed in the law of the states in this area. Many of these differences had, or have, their roots in such matters as the extent to which equity jurisdiction had developed in the state at the time the foreclosure rules were established, whether the state is a title or lien state, the extent to which strict foreclosure or some variation thereof was and remains permissible, and the relative strength from time to time within each state of the debtor and creditor influences. The diversity which existed in 1853, as well as thereafter, strongly suggests that Congress would employ general language in attempting to describe the services associated with foreclosures for which the marshals were entitled to fees. Great specificity would have required language which described the foreclosure procedure of each of the states in 1853 which, in turn, would have required frequent amendments as procedures were altered and additional states joined the Union. While it can be argued that Congress could have chosen better general language to describe mortgage foreclosures than that which commences with “seizing or levying on property”, it remains true that this language is general in scope and, in my view, has proved elastic enough to embrace mortgage foreclosures under the procedures of each of the states for more than a century.

This conclusion is made more firm when it is realized that in 1853 in a number of eastern states there existed foreclosure procedures which consisted of placing the mortgagee in possession through legal process not involving a sale while at the same time there was developing in most, if not all, states the foreclosure by sale in an equitable court action. At the same time, Pennsylvania permitted foreclosure by a legal process under a statutory writ of scire facias sur mortgage which operated in a manner similar to that open to an ordinary execution creditor. Surely Congress in 1853 did not employ language that embraced only Pennsylvania foreclosures or, at most, only those employing legal, but not equitable, processes. The language adopted in my opinion was intended to embrace all foreclosures conducted by marshals qua marshals without regard to whether a legal process resembling levy and execution was employed.

This conclusion in my view is not altered by Rule 69(a). Indeed, it is by no means clear that Rule 69(a) applies to mortgage foreclosures accomplished through judicial sales. Its origin suggests that it was intended to follow in substance 28 U.S.C. § 727 (1940), which dealt with remedies by execution or otherwise available to a “party recovering a judgment in any common-law cause in any district court”, and 28 U.S.C. § 729 (1940), which made available in proceedings to vindicate civil rights “the common law, as modified and changed by the Constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held” when the federal law was not “adapted to the object” of such proceedings and where federal law failed “to furnish suitable remedies.” Moreover, Rule 69(a), as already mentioned, must be read in conjunction with 28 U.S.C. § 2001 which under the teaching of Yazoo & M. V. R. Co. v. Clarksdale, 257 U.S. 10, 19, 42 S.Ct. 27, 29, 66 L.Ed. 104 (1921) is applicable “to judicial sales made under order or decree of the court and requiring confirmation by the court for their validity, and . . . does not extend to sales under common-law executions which issue by mere praecipe of the judgment creditor on the judgment without order of the court, and in which the levy and sale of the marshal are ministerial, do not need confirmation to give them effect, and only come under judicial supervision on complaint of either party.” Rule 69(a) unquestionably is applicable to the latter type of sale, Weir v. United States, 339 F.2d 82, 85 (8th Cir., 1965), while 28 U.S.C. § 2001 has been held applicable to mortgage foreclosures. Feldman Inv. Co. v. Connecticut General Life Ins. Co., 78 F.2d 838, 841 (10th Cir., 1935).

It is nonetheless true that in mortgage foreclosures in federal courts state laws neither inconsistent with, nor operating to frustrate, federal policies may be operative. United States v. Montgomery, 268 F.Supp. 787 (D.C.Kan., 1967). It is doubtful, however, that this use of local law is dependent upon the authority of Rule 69(a). It is more likely that it springs from the ever present necessity in a federal system of accommodating the legitimate interests of both the state and federal governments.

However, even if it should so rest upon Rule 69(a), the Notes of the Advisory Committee indicate that a predecessor to 28 U.S.C. § 1921, viz. 28 U.S.C. § 574, was intended to remain applicable notwithstanding the promulgation of Rule 69. It follows that the issue in this case, as already indicated, is simply whether the actions of the Marshal amounted to a “seizure” or “levy” within the meaning of 28 U.S.C. § 1921. The Notes of the Advisory Committee give no indication that 28 U.S.C. § 1921 was to be “interrelated” with Rule 69(a) in the manner accomplished by the majority-

Thus, I believe there was in this case a “seizure” or “levy” within the meaning of 28 U.S.C. § 1921. Also I submit that all other requirements of that statute were met and that the Marshal on behalf of the United States is entitled to the fee he claims under the circumstances of this case. A court in which the foreclosure proceedings occur which is troubled by the excessive amount that the statutory formula yields can refuse to tax costs, but the trial judge in this case was correct when he concluded that should any fee be allowed to the Marshal it must be that which is provided by 28 U.S.C. § 1921. The remedy for this situation, if such be needed, must be developed by Congress. Our intervention in the manner adopted by the majority can only create confusion regarding the scope of 28 U.S.C. § 1921 and prevent the achievement of uniformity of fees, a principal purpose of the 1962 amendments.

      . The writ also commanded the Marshal to make distribution of the proceeds of the sale and to perform all things “as directed in said judgment and decree”.

      . The return recited the sale to Wolfsen for $5,050,000, “less than the aggregate amount owing under the two judgments” held by Wolfsen, and providing that the amount bid be entered of record in satisfaction of the judgments, first deducting the fee or commission to be paid the Marshal, as finally determined by the court, this amount to be paid by Wolfsen.

      . The remaining costs, totaling $890.07, have been paid and are not in dispute. These included publication charges, mileage, and “Execution $3.00, Notice $3.00, and Marshal’s Deed $3.00”.

      . The Oregon statute prescribing sheriff’s fees in effect when the Marshal’s sale was conducted, O.R.S. 21.410, reads in pertinent part:
      “The sheriff . . . shall, in all civil suits, actions and proceedings, collect in advance the following fees:
      (10) For serving or collecting an execution or decree other than for the sale of land, one percent on the amount realized as shown by the sheriff’s return.
      (11) For selling land on execution or decree, $10.
      (12) For making a conveyance of real property, sold on any process, to be paid by or for the grantee, $5.
      (14) For making a certificate of sale of real property, $2.

      . Prior to the sale appellants had moved the court for an order fixing the Marshal’s fee. The court denied the motion subject to the right of the parties to object subsequent to the sale to any fee or commission claimed by the marshal.

      . These commissions are turned into the Federal Treasury. See 31 U.S.C. § 725v(b), and 28 U.S.C. § 572(a).

      . The report concludes:
      “The Committee on the Judiciary is aware of the need to avoid raising the cost of litigation in the Federal Courts to a prohibitive level. However, the committee is of the view that it would not unduly burden private litigants to require them to bear a greater share of the cost of their litigation. Accordingly, this bill would moderately increase the fees charged to private litigants for the services of U. S. marshals. It is estimated that the legislation will result in an increase in income to the Federal Government of about $150,000 a year.” H.R.No. 1724, 87th Cong.2d Sess. (1962) p. 2.

      . The Senate Report reads in part: “Section 1921 . . . specifies the fees to be charged by U. S. marshals for the service of various types of process on behalf of private litigants”. S.R.No.1785, 1962 U.S.Code Cong. & Admin.News, p. 2240. Neither the Act itself nor the legislative history makes any reference to the meaning of “seizing or levying”.

      . In Hill, the court apparently did not consider the effect of Rule 69(a). The property sold was located in Kansas. As indicated infra, Kansas like Oregon would not require a levy or seizure in a foreclosure sale of real property. Norton v. Reardon, 67 Kan. 302, 72 P. 861, 863 (1903).

      . The distinction has also been recognized in Oregon in prescribing sheriffs fees. A commission is allowed “for serving or collecting an execution or decree other than for the sale of land”. A fee of $10.00 is prescribed “for selling land on execution or decree”. (See note 4).

      . In a different context the distinction between judicial and execution sales was recognized by the Supreme Court in Yazoo & M. V. R. Co. v. Clarksdale, 257 U.S. 10, 19, 42 S.Ct. 27, 66 L.Ed. 104 (1921).

      . Counsel have not cited, nor have we found, any case, other than Hill, holding that a levy or seizure is required to give effect to a judgment foreclosing a mortgage on real estate.

      . This would be true also with respect to the enforcement of a judgment within a state if the court did not have control of any specific property with which to satisfy the judgment.

      . It does not appear from the legislative history that the meaning of the terms “levy” and “seizure” or the effect of the amendment on the foreclosure of mortgages on real property were expressly considered by Congress. The estimate of a total increase in income of about $150,000 a year (see note 7) is hardly consistent with an intent to impose the per- ^ centage formula on foreclosure sales of real property.

      . As noted supra, the action could have been brought in státe court. While the plaintiff had a choice of forum, the defendants did not and are confronted with a judgment against them over $75,000 in excess of what it would have been had the action been filed in state court.

      . Had the plaintiffs anticipated the assessment of a $75,000 fee for the sale of the property, the action would no doubt have been filed in state court. That option of course would not be available to the other litigants in an action in which the United States is a party and either files in or removes to federal court.

      . This conclusion is supported by the fact, as indicated, supra, that the terms “seizure” and “levy” have a specific meaning founded in the common law. Historically, a mortgage foreclosure sale did not involve either a “seizure” or a “levy”. In the absence of express language to the contrary, we are unwilling to hold that Congress intended to accord those terms a definition broad enough to cover mortgage foreclosure sales, where no levy or seizure is required. Having reached this conclusion, we need not consider the other issues raised by the appellants.

      . The pertinent portions of 28 U.S.C. § 1921 immediately prior to the 1962 revision of this section read as follows:
      For serving a writ of possession, partition, execution, or any final process, the same mileage as is allowed for the service of any other writ, and for making the service, seizing or levying on property, advertising and disposing of the same by sale, set-off, or otherwise according to law and receiving and paying over the money the same fees and poundage as are or shall be allowed for similar services to the sheriffs of the States, respectively, in which the service is rendered;
      In ail cases in which the vessel or other property is sold by a public auctioneer or by some party other than the marshal or his deputy, the fee herein authorized to be paid to the marshal shall be reduced by the amount paid to said auctioneer or other party;
      For sale of vessels or other property, under process in admiralty, or under the order of a court of admiralty, and for receiving and paying over the money, 2V2 per centum on any sum under $500, and IV4 per centum on the excess of any sum over $500.

      . 49 Stat. 513 (Part 1).

      . H.Rep. No. 1724, 87th Cong., 2d Sess., 5 (1962).

      . For an example of foreclosure by a special master, see Deck v. Whitman, 96 F. 873 (Cir.Ct. E.D.Tenn., 1899). Foreclosure sales were conducted by marshals. See Nalle v. Young, 160 U.S. 624, 16 S.Ct. 420, 40 L.Ed. 560 (1896); Blossom v. Milwaukee & C. R. Co., 3 Wall. (70 U.S.) 196, 18 L.Ed. 43 (1866); Black v. Black, 77 F. 785 (Cir.Ct. E.D.Pa., 1896); § 803 Simkin’s Federal Practice (3d ed. 1938).

      . For a careful analysis of these roots and the law of foreclosure, see Osborne, Mortgages (2d ed. 1970), 647-743.

      . Osborne, supra at 656- 7, 661-3.

      . Osborne, supra at 658.

      . Moore’s Federal Practice, § 69.01 [2] (1973). 28 U.S.C. § 729 (1940) now appears in 42 U.S.C. § 1988. 28 U.S.C. § 727 (1940) has been repealed because it is now covered by Rule 69(a).

      . See Fed.Rules of Civ.Proc., 28 U.S.C.A. Rule 69.

      . Appellants contend that, because they bid in their mortgage at the sale, the Marshal did not “receive and pay over money” as required by 28 U.S.C. § 1921. This argument places form over substance. The practice of bidding in mortgages was developed for the convenience of litigants to prevent the circuity which would result if a mortgagee, purchasing at the sale, were required to pay money in which would be returned to him forthwith. The Marshal did all that was required of him hfre and did in effect receive and pay over money. See The Cesare Augusto, 39 F.Supp. 751 (N.D.Cal., 1941).

      . The power to appoint a special master to conduct the foreclosure sale presumably still exists. Rule 53(a) F.R.Civ.Proc.


source: Caselaw Access Project

author: GODBOLD, Circuit Judge: LEWIS R. MORGAN, Circuit Judge

license: Public Domain

text:
    Roland Colquett GAMBLE, Petitioner-Appellee, v. STATE OF ALABAMA, Respondent-Appellant.
    No. 74-2290.
    United States Court of Appeals, Fifth Circuit.
    March 5, 1975.
    Rehearing and Rehearing En Banc Denied April 29, 1975.

      William J. Baxley, Atty. Gen., Joseph G. L. Marston, III, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellant.
    John W. Davis, III, Montgomery, Ala. (Court-appointed), for petitioner-appellee.
    Before GODBOLD and MORGAN, Circuit Judges, and BOOTLE, District Judge.
   GODBOLD, Circuit Judge:

This case presents the following question: By statute a state prisoner sentenced to the penitentiary is given the option of spending his time pending appeal in the local jail or in the state penitentiary to which he has been sentenced. If he chooses the option of jail, must he be credited with his jail time in the ebmputation of time served under his sentence. We find that controlling precedent precludes credit for the jail time so served, and we reverse the District Court on that point.

On July 1, 1971, the appellee was convicted of second degree murder in an Alabama state court. He was sentenced to 30 years’ imprisonment in a state penitentiary. Evidently he failed to take an appeal immediately after his conviction and waited until October 12, 1971, before filing a pro se appeal in state court. The appeal resulted in affirmance of conviction on August 15, 1972. Rehearing was denied September 12, 1972.

From the time of his arrest, and through January 31, 1973, when he was transferred to a state penitentiary, appellee was confined at the Etowah County Jail. The state has refused to credit this 16-month period of jailhouse detention in its computation of appellee’s time served under his 30-year sentence. The state contends that its denial of credit is mandated by a constitutionally valid state statute which permits a convicted felon taking an appeal to choose between jail and prison as his place of incarceration during the pendency of the appeal. Under this scheme, the appellant can elect a “direct” or a “working” appeal. A “direct” appeal is authorized by Tit. 15 § 372, Code of Alabama, 1940, which provides for release on bail of certain felons but contains no provision for release of those whose sentence exceeds 20 years’ confinement. Persons who cannot gain release during appeal are held in county jails. Execution of sentence is suspended while the inmate is housed in jail. However, Tit. 15 § 373, Code of Alabamá, 1940, permits the appellant prisoner to waive suspension of sentence execution. Upon waiver, the inmate is transferred from jail to penitentiary, and the sentence begins to run. The taking of a working appeal does not affect the appellate process. The only difference between a working and a direct appeal involves suspension of sentence execution and locus of detention. A direct appeal may be converted to a working appeal “at any time before the transcript has been forwarded to the clerk of the appellate court”. Evidently the appellee had been advised of his right to waive direct appeal and knov/ingly elected to remain in jail under § 372.

In a pro se petition for habeas corpus filed February 1, 1974 in federal district court, appellee contended that the state’s denial of credit violated various of his federal constitutional rights. The District Court upheld this claim, relying on Robinson v. Beto, 426 F.2d 797 (CA5, 1970); and Hart v. Henderson, 449 F.2d 183 (CA5, 1971). In those cases this court found Texas and Louisiana mandatory suspension of execution statutes unconstitutional under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The District Court also relied on Hood v. Alabama, No. 73— 265 — W (N.D.Ala. June 11, 1973), in which the Alabama optional suspension of execution was found invalid under Robinson and Hart. In Hood, the state was ordered to credit jail time served during a direct appeal in the computation of total time served under sentence.

Hart and Robinson do not control the validity of the Alabama scheme. In those cases this court looked to the requirement enunciated in North Carolina v. Pearce, 395 U.S. at 723-726, 89 S.Ct. at 2079-2081, 23 L.Ed.2d at 668-670, that the state’s appellate procedure cannot, consistent with due process, inhibit the exercise of the right of appeal. The statutes scrutinized and ultimately held invalid in Hart and Robinson automatically stayed execution of sentence during pendency of appeal. An automatic stay would necessarily require a prisoner considering an appeal to weigh the doubt of success against the certainty of extended incarceration upon denial of appeal. The natural effect of these automatic stay statutes would be to inhibit the taking of appeals.

The Alabama scheme is, on its face, dissimilar from the Louisiana and Texas automatic suspension statutes. In Alabama stay of sentence execution is avoidable, and avoidance results in no adverse effect to the prisoner taking appeal. Appellee has not contended that despite facial fairness the Alabama statutes in fact operate to curb the taking of appeals. In the absence of such a contention and supportive evidence of a “chilling” effect, we find the Alabama optional stay of sentence scheme fulfills the due process requirements of Pearce.

Appellee also argues that Pearce’s finding that the double jeopardy clause precludes multiple punishments for a single offense compels us to order credit for the jail time served. This contention is foreclosed by Dimmick v. Tompkins, 194 U.S. 540, 24 S.Ct. 780, 48 L.Ed. 1110 (1904), a case in which the Court denied credit under circumstances similar' to those in the instant case. Dimmick has not been limited by Pearce or by any other subsequent Supreme Court decision. Its vitality was recently recognized by this court in Allen v. Henderson, 434 F.2d 26, 29 (CA5, 1970).

In Dimmick, the petitioner had been sentenced to two years’ imprisonment at hard labor for a federal offense. He took an appeal and arranged to be housed during the 18-month period of appeal in a county jail rather than the penitentiary to which he had been sentenced. When the appeal was decided against him, he was transferred to the penitentiary. Credit for the 18-month period was denied him, and he sought judicial review. Ultimately the Supreme Court held that he was not entitled to credit. The Court noted that Dimmick’s sentence specified “imprisonment in prison” and that he had arranged for detention in jail during the pendency of the appeal. Under these circumstances jail time was not time served “under the judgment” but rather was “owing to [Dimmick’s] efforts to obtain a review and reversal of the judgment”. 194 U.S. at 547, 24 S.Ct. at 781, 48 L.Ed. at 1113. The inmate had himself obtained the stay of sentence execution. The Court would not allow him to “take advantage of his own action . [and] thereby shorten the term of imprisonment in the state prison To hold otherwise would be inconsistent with the general principle that a person shall not be permitted to take advantage of any act of another which was committed upon his own request, or was caused by his own conduct.” 194 U.S. at 549, 24 S.Ct. at 782, 48 L.Ed. at 1114.

On the facts Dimmick controls, for in the instant case appellee’s own actions resulted in his incarceration in the county jail and the resultant suspension of sentence execution. Like the petitioner in Dimmick, appellee alone determined the locus of his detention and had the power to compel his own transfer to prison. He failed to exercise that power and cannot now complain of the result.

Dimmick controls, however, only so far as appellee was responsible for his detention in jail rather than prison. Credit is disallowed only for that portion of the time spent in Etowah County Jail during appellee’s appeal. Dimmick does not bar credit for the time appellee spent in jail after conviction and before the appeal was filed, nor for the time served in jail after the conviction was affirmed on appeal and through the time of transfer to prison. These periods of jailhouse detention were the result not of appellee’s action but of the state’s failure to transfer him to the place of sentence, and the state cannot deny credit where its failure to transfer a prisoner to an appropriate place of incarceration after sentence results in jailhouse rather than prison incarceration.

Reversed and remanded.

LEWIS R. MORGAN, Circuit Judge

(dissenting):

The majority today takes its cue from Richard Lovelace, author of the oft-quoted lines, “Stone walls do not a prison make/Nor iron bars a cage.” Neither, the majority implicitly holds, does imprisonment equal punishment if the prisoner has chosen to await the outcome of his appeal in jail rather than prison. Since I believe a prisoner is constitutionally entitled to credit for time spent in state-imposed imprisonment, I respectfully dissent.

The majority rests its opinion on two rather questionable assumptions. The first is that all prisoners are well informed of their choice under the Alabama statutory scheme. In an ideal world, such might be the case; in our imperfect world, I believe such an assumption is mere wishful thinking. The truth is that Alabama prisoners are presumed to want their sentences suspended. No state official is required to inform them of their right to “waive benefit of suspended sentence.” There is no question in my mind that many prisoners never obtain this information from any source, and that the “choice” which the majority finds so important is therefore non-existent in many cases. The crucial distinction between this case and Robinson v. Beto, 426 F.2d 797 (5th Cir. 1970), and Hart v. Henderson, 449 F.2d 183 (5th Cir. 1971) thus fades neatly away.

I therefore view the Alabama statute as one which automatically denies a prisoner credit for time spent in jail pending appeal, unless he somehow discovers that he has a right to waive benefit of suspended sentence. The question is thus, it seems to me, whether a state may enact such a scheme consistently with the Fifth Amendment’s guarantee against double jeopardy.

This raises the majority’s second questionable assumption: that Dimmick v. Tompkins, 194 U.S. 540, 24 S.Ct. 780, 48 L.Ed. 1110 (1904) is still the law. In light of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) I simply cannot agree that it is. I believe that the Court in Pearce clearly indicated that our Constitution is concerned with protecting citizens from excessive punishment, without regard to where or when the punishment occurs. Pearce is not controlling, of course, since it deals with resentencing after a second trial, but the central idea is directly on point: “. . . this basic constitutional guarantee [protection against double jeopardy] is violated when punishment already exacted for an offense is not fully ‘credited’ . . ..” 395 U.S. at 718, 89 S.Ct. at 2077.

No amount of legal legerdemain can hide the fact that Gamble was not given credit for punishment already exacted in the county jail when he was transferred to the state prison. We offer him but cold comfort in holding that he was not being “punished” while in the county jail because he had chosen to remain there. I believe the Constitution demands that he be given credit for that time, and I would therefore affirm the district court.

      . “To Althea: From Prison”


author: PER CURIAM:

text:
    NEWSPAPER AND PERIODICAL DRIVERS & HELPERS UNION, LOCAL NO. 921, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Douglas BROWN et al., Cross-Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SAN FRANCISCO NEWSPAPER PRINTING COMPANY, INC., Respondent.
    Nos. 73-3595 to 73-3597.
    United States Court of Appeals, Ninth Circuit.
    Dec. 23, 1974.

      Kenneth N. Silbert (argued), Burndage, Neyhart, Grodin & Beeson, San Francisco, Cal., for petitioner Union (No. 73-3595).
    Timothy H. Fine (argued) and G. Joseph Bertain, Jr., San Francisco, Cal., for cross-petitioners newspaper dealers (No. 73-3596).
    David L. Bacon (argued), Cooper, White & Cooper, San Francisco, Cal., for respondent Company (No. 73 — 3597).
    Joseph Thackery, NLRB, Washington, D. C. (argued), for N. L. R. B. in all cases.
    Before CHAMBERS and KILKENNY, Circuit Judges, and JAMESON, District Judge.

      The Honorable William J. Jameson, Senior District Judge for the District of Montana, sitting by designation.

   OPINION

PER CURIAM:

Before the court are the respective petitions of Newspaper & Periodical Drivers & Helpers Union, Local # 921 (Union) and the nine charging parties, individuals who are non-unionized newspaper distributors (Dealers) for San Francisco Newspaper Printing Company, Inc. (Company), to review a supplemental decision and order of the National Labor Relations Board (Board) reported in 204 N.L.R.B. No. 60. The supplemental decision and order followed our remand of an earlier Board decision and order. Brown v. N. L. R. B., 462 F.2d 699 (CA9 1972). The Board has filed a cross-application for enforcement of its supplemental order. The Union first sought review of the subject in the United States Court of Appeals for the District of Columbia Circuit, followed by the Dealers’ request for review and change of venue. A change of venue was granted, and the consolidated cases were transferred to this court for further proceedings. A full statement of the facts is found in the Board’s decision.

Our review convinces us that there is substantial evidence on the whole record to support the Board’s findings that the Union and the Company violated § 8(e) of the National Labor Relations Act (29 U.S.C. § 158(e)) by agreeing to terminate the independent contractor status of Dealers who distributed the Company’s newspapers and by permitting them to work, if at all, only as employees and Union members. The Board correctly found that “work preservation” was not the primary object of the contract termination provision, and in so doing it properly applied the rule of National Woodwork Manufacturers Assoc. v. N. L. R. B., 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967).

Moreover, we hold that the Board, in the exercise of its expertise, properly refused to award compensatory damages or back pay to Dealers it ordered reinstated pursuant to § 10(c) of the Act (29 U.S.C. § 160(c) ). When, and to what extent, damages may serve the policy of the National Labor Relations Act in a given case, is a complex problem for the Board to decide in the light of its administrative experience and knowledge. The Board draws on a unique fund of expertise, and its choice of remedy must be given special respect by the reviewing courts. Marriott Corp. v. N. L. R. B., 491 F.2d 367, 371 (CA9 1974). We see no abuse of the Board’s discretion in its denial of compensation to Dealers, a group of independent contractors, not employees.

It is our considered judgment that the Board correctly applied 29 U.S.C. §§ 158(e) and 160(c) to the facts in the case and that its decision and order, reported as aforesaid, should be enforced. The petitions of Union and Dealers are denied.

The Board shall submit an appropriate order of enforcement.

It is so ordered.


author: MANSFIELD, Circuit Judge:

text:
    Cateno TURCHIO, Plaintiff-Appellee, v. D/S A/S DEN NORSKE AFRICA et al., Defendants and Third Party Plaintiffs-Appellees-Cross-Appellants, v. PITTSTON STEVEDORING CORPORATION, Third Party Defendant-Appellant.
    Nos. 152 and 40, Docket 73-1867 and 73-2058.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 21, 1974.
    Decided Dec. 27, 1974.
    See also, D.C., 336 F.Supp. 1187.

      Thomas F. Molanphy, New York City (William P. Kain, Jr., Haight, Gardner, Poor & Havens, New York City, of counsel), for defendants and third party plaintiffs-appellees-cross-appellants.
    Joseph Arthur Cohen, New York City (Sidney A. Schwartz, Alexander, Ash, Schwartz & Cohen, New York City, of counsel), for third party defendant-appellant.
    Martin Lassoff, New York City (Morris Cizner, Zimmerman & Zimmerman, New York City, of counsel), for plaintiffappellee.
    Before SMITH, HAYS and MANSFIELD, Circuit Judges.
   MANSFIELD, Circuit Judge:

Inconsistencies between a jury’s verdict and its answers to interrogatories are not an infrequent occurrence. See, e. g., McCandless v. L. G. DeFelice & Son, 144 F.Supp. 462 (W.D.Pa.1956); Fuselier v. Thompson, 155 F.Supp. 75 (W.D.La.1957). In this typical tripartite longshoreman personal injury suit against a' shipowner, which in turn impleaded plaintiff’s employer-stevedoring concern, we are confronted with an unusual variation on the theme. In this case the jury not only answered interrogatories but rendered separate and successive verdicts that proved to be inconsistent. The district court, Robert L. Carter, Judge, entered judgment on the first verdict. We must decide whether either verdict may be upheld.

Plaintiff, a longshoreman, sued the shipowners in the Southern District of New York, alleging that while performing- his duties aboard the S.S. Troubador he suffered personal injuries caused by unseaworthiness and negligence. The shipowners in turn impleaded plaintiff’s employer, Pittston Stevedoring Corporation (“Pittston” herein), seeking recovery of indemnity for breach of its warranty of workmanlike service. At trial the shipowners’ counsel, before summations and the court’s charge to the jury, presented a series of written interrogatories to the court with the request that they be submitted to the jury for answer. The court ruled that “The proposed special requests to the jury, those are in substance granted. They will be included in the charge.” Toward the close of his charge with respect to the plaintiff’s claim against the shipowners the judge instructed the jury as follows:

“I have now completed my charge to you on the plaintiff’s action against the shipowner and in considering the action of the plaintiff against the shipowner, I want you to answer the questions whether or not you find one, whether the ship was unseaworthy; two, whether the unseaworthy condition, if you say yes, was the proximate cause of the injury.
“If your answer to those questions are yes, you need go no further but to award damages. If the answer is no, then you must decide whether or not the shipowner was guilty of negligence and number four whether that negligence was the proximate cause of the plaintiff’s injury. Finally in that regard, whether or not the plaintiff himself contributed to his own injury.” (App. 61a — 62a).

Despite the court’s failure to put the questions in writing or to request the jury to furnish written answers, there was no objection to the court’s submission of the questions orally to the jury.

After deliberation the jury, without answering the questions, rendered a verdict for $75,000 in favor of the plaintiff and found in favor of the shipowners on their third party claim for indemnity against Pittston. Thereupon the following colloquy between counsel for the shipowners, the Court, Juror No. 1 and counsel for the plaintiff occurred:

“Mr. Baxter [counsel for stevedore]: Before the jury is dismissed, I have a request, your Honor.
“The Court: What is it?
“Mr. Baxter: That the jury be directed to reconsider the verdict and to answer the questions that the Court put to it before specifically, the Court in its charge put forward certain questions to be answered, and this verdict is not in accordance with the Court’s charge and direction.
“The Court: I did ask several questions about seaworthiness and negligence and so forth. I did want you to bring in a verdict on one, whether you found it was seaworthy or unseaworthy or whether you are basing your judgment on unseaworthiness or negligence or both. What I would like to find out, did you discuss it from that angle at all?
* * * * * *
“Juror Number One: Would you be meaning in a different wordage and specific arrival of our verdict other than what we have put down on paper?
“The Court: Yes.
“Juror Number One: We couldn’t deliberate here?
“The Court: No. I did want an answer to questions, one, did you find unseaworthiness, was the proximate cause. If you did, did you go to damages or did you find negligence. That is how I wanted you to answer, so that I am going to ask you to return to see whether you can decide those issues, return to your deliberations.
“Mr. Lassoff [counsel for plaintiff]: This is only with regard to the answers of questions one and two, whether there was negligence or unseaworthiness or both.” (Emphasis supplied).

Fifteen minutes later the jury returned to announce, “We find one, a, the ship is seaworthy. 2A, negligence by the stevedoring company.”

These answers, of course, were incomplete, since they failed to state whether the shipowner was negligent. After some colloquy between court, counsel and jury, the judge, without objection by any party, recharged the jury as to the elements of plaintiff’s claim and the issues, listing six questions which the jury was requested to answer: (1) whether the ship was unseaworthy, (2) if so, whether the unseaworthiness proximately caused plaintiff’s injury, (3) whether the shipowners were negligent, (4) if so, whether the negligence was the proximate cause of the injury, (5) whether plaintiff’s negligence contributed to the injury, and (6) whether the stevedore breached its warranty to the shipowner.

After the jury had resumed further deliberations plaintiff’s counsel, perhaps for the first time appreciating the risk that the jury’s further consideration of the issues might jeopardize a verdict for the plaintiff or even result in a verdict in favor of the defendants, moved to enter judgment on the first verdict, claiming that only a general verdict had in fact been asked. The court deferred consideration of the matter, pending its receiving the jury’s answers to the questions put to it.

On the following day the jury, after deliberating several hours, returned another verdict, this time finding (1) the ship unseaworthy and (2) in favor of Pittston. The jury also reduced plaintiff’s damages from $75,000 to $50,000. It still failed to furnish specific answers to the six interrogatories put to it by the court. The court thereupon declared a mistrial which it promptly withdrew in order to consider motions by the plaintiff and the shipowners to the effect that judgment should be entered upon the original verdict for $75,000. In an opinion filed some weeks later the court held that the original verdict must stand and entered judgment accordingly, from which Pittston appeals.

DISCUSSION

A trial judge is accorded wide discretion in determining whether to use special interrogatories in conjunction with a general verdict or to limit the jury to the latter. Zaiko v. District of Columbia, 138 U.S.App.D.C. 336, 427 F.2d 606, 609 (1970); Texas & P. Ry. v. Griffith, 265 F.2d 489, 493-494 (5th Cir. 1959); Employers Mut. Cas. Co. v. Johnson, 20Í F.2d 153, 156 (5th Cir. 1953). The first question in the present ease is whether the special interrogatory procedure was planned from the outset or was an afterthought. Despite Judge Carter’s later conclusion that only a general verdict was called for, on this record we are satisfied that the court expected separate answers to the interrogatories put to the jury in its charge. Immediately prior to his charge the trial judge advised that he would grant the request for submission of interrogatories “in substance” by including the questions in his charge, which he then did, asking the jury to answer them. When the jury brought in a verdict without answering the specific questions the judge stated “I did want you to bring in a verdict on one, whether you found it was seaworthy or unseaworthy. . . . ” Then he followed, in response to a question from the foreman, with the statement “I did want an answer to questions, one, did you find unseaworthiness, was the proximate cause. . . .” Specific interrogatories were again listed in supplemental instructions to the jury. While the issue might never have arisen if the court had furnished written questions to the jury before its original deliberations, the record as a whole makes it reasonably clear that answers to the court’s oral interrogatories were expected.

Plaintiff and the shipowners argue that the trial judge’s submission of oral interrogatories to the jury must be treated as a nullity because the court failed to follow the procedure specified by Rule 49(b), F.R.Civ.P., which provides in pertinent part:

“(b) General Verdict Accompanied by Answer to Interrogatories.

“The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict.”

Had a timely objection been made by the parties, the argument might have merit. But the shipowners did not object and while plaintiff’s counsel eventually objected (apparently when he sensed the danger of continuing with interrogatories), he did not do so until some of the oral interrogatories had been answered. Indeed, prior thereto he sought to assist the court in framing the questions to be submitted to the jury.

Unquestionably the proper procedure in securing a verdict accompanied by interrogatories is to put the latter in writing to the jury and request written answers. If that method had been adopted in the present case, much of the confusion which led to a procedural imbroglio would have been avoided. But the manner by which the questions are submitted to the jury remains merely a matter of form rather than of substance, which, like other procedural matters, may be waived by failure to make timely objection. In the present case the court’s failure to submit written interrogatories to the jury as specified by Rule 49(b) was waived by the parties’ clear acquiescence in the court’s submission of oral questions. The failure to provide written interrogatories presented no major obstacle to the jury’s answering the court’s questions. The questions, of course, were recorded by the court reporter, as were the jury’s answers to two of the questions. Thus the jury did have access during its deliberations to a record of the questions, which it could have had reread to it by the court reporter upon request. Nor was the jury, which prepared a written general verdict delivered by the foreman, precluded from responding by written answers.

We conclude, therefore, that the jury was obligated to answer the special oral interrogatories put to it by the court, with the acquiescence of the parties, in conjunction with any general verdict that might be rendered. When the jury failed at first to answer any of the questions put to it, the court acted within its rights in asking the jury to deliberate a second and third time to obtain answers to the unanswered questions. See Porret v. City of New York, 252 N.Y. 208, 169 N.E. 280 (1929) (Cardozo, J.); Craigie v. Fireman’s Ins. Co., 191 F.Supp. 710 (D.Minn.1961), aff'd., 298 F.2d 457 (8th Cir. 1962); 5A Moore’s Fed.Practice 1[ 49.03 [4]. Cases holding improper a judge’s inquiry into a juror’s motivation or reasoning following return of a complete verdict, see, e. g., McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300 (1915); Grace Lines Inc. v. Motley, 439 F.2d 1028 (2d Cir. 1971), are inapplicable. We therefore have no basis to treat all that followed the original verdict as a nullity.

The trial judge may, in an appropriate case, withdraw special interrogatories and enter judgment on a general verdict, Diniero v. United States Lines, 288 F.2d 595 (2d Cir.), cert. denied, 368 U.S. 831, 82 S.Ct. 54, 7 L.Ed.2d 34 (1961), provided he acts before any verdict is returned or after a general verdict is received and no questions have been answered, see Kissell v. Westinghouse Elec. Corp., 367 F.2d 375 (1st Cir. 1966). But once the jury gives answers to interrogatories that are inconsistent with its verdict, judgment may not be entered upon the latter. See Rule 49(b); Welch v. Bauer, 186 F.2d 1002 (5th Cir. 1951). Here the jury, following return of its general verdict for $75,000, partially answered the court’s questions and then rendered a second verdict which was inconsistent with its previous verdict and answers, without answering all of the interrogatories put to it or correcting its earlier answers to render them consistent with its second verdict. Clearly the inconsistency precluded the judge from accepting the first verdict. Moreover, once the parties had acquiesced in the resubmission of the interrogatories to the jury, they could no longer complain that the court had erroneously rejected the first verdict. Safeway Stores v. Dial, 311 F.2d 595, 599 (5th Cir. 1963).

Nor would we be justified in directing that judgment be entered on the jury’s second verdict. The jury did not answer all of the interrogatories submitted to it by the court, which required response to such important questions as whether the accident was caused by the ship’s unseaworthiness or the shipowners’ negligence and in part by contributory negligence. Furthermore, the trial judge, having revoked his declaration of a mistrial, apparently did not consider the second verdict to be salvageable and accordingly did not either require the jury to answer the questions or relieve it from the necessity of doing so on the ground that he proposed to enter judgment on the second verdict. By that stage in the proceedings it was readily apparent that the jury was more than a little confused. The reduction of the plaintiff’s damage award from $75,000 to $50,000, and its reversal of its finding on unseaworthiness and the indemnity claim are difficult to rationalize. Under the circumstances, a new trial is the appropriate course, cf. Phillips Chem. Co. v. Hulbert, 301 F.2d 747 (5th Cir. 1962), even though the parties seek judgment on different verdicts, Royal Netherlands Steamship Co. v. Strachan Shipping Co., 362 F.2d 691 (5th Cir. 1966), cert. denied, 385 U.S. 1004, 87 S.Ct. 708, 17 L.Ed.2d 543 (1967).

The judgment of the district court is reversed, and the case is remanded for a new trial.

      . Defendant’s “Proposed Special Questions to Jury” read as follows:
      “(1) Was the shipowner negligent?
      (yes) (no)
      (2) Was the m/s Troubadour unseaworthy?
      (yes) (no)
      (3) If your answer to (1) or (2) is in the affirmative was such negligence or unseaworthiness a proximate cause of plaintiff’s accident?
      (yes) (no)
      (4) If your answer to (3) is in the affirmative, what is the total amount of plaintiff’s damages?
      ($ )
      (5) Did any negligence on the part of plaintiff contribute to his accident?
      (yes) (no)
      (6) If your answer to (5) is in the affirmative what percentage of plaintiff’s damages are attributable to such negligence?
      ( %)
      (7) Did the stevedore breach the warranty of workmanlike service which it owed to the shipowner?”
      (yes) (no)

      . For example, a party may waive objections to the admissibility of evidence under Rule 43 by intentionally sitting silently by while the testimony is being received. See, e. g., Jenkins v. General Motors Corp., 446 F.2d 377 (5th Cir. 1971), cert. denied, 405 U.S. 922, 92 S.ct. 959, 30 L.Ed.2d 793 (1972). Although Rule 49(a) directs the court, when submitting a special verdict, to require the jury to return “a special written finding upon each issue of fact,” a party may waive jury determination of certain issues by failing to object to the court’s interrogatories before the jury retires. Ribeiro v. United Fruit Co., 284 F.2d 317, 319 (2d Cir. 1960), cert. denied, 365 U.S. 872, 81 S.ct. 905, 5 L.Ed.2d 861 (1961). See also Martin v. United Fruit Co., 272 F.2d 347, 348 (2d Cir. 1959); United States v. H. M. Branson Distrib. Co., 398 F.2d 929, 937 (6th Cir. 1968).

      . The court charged the jury:
      “When you retire to the jury room, you may send for any exhibit which has been received in evidence and you may ask to have any testimony or any of the instructions which I have just given to you read back to you.” (App. 68a).


author: PER CURIAM.

text:
    Allen APPLEGATE, Petitioner, v. Honorable Edward J. DEVITT, United States District Judge for the District of Minnesota, Respondent.
    No. 74-1710.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 13, 1974.
    Decided Jan. 14, 1975.

      Harvey E. Skaar, Minneapolis, Minn., for petitioner.
    Charles Quaintance, Jr., Minneapolis, Minn., for respondent.
    Before LAY and BRIGHT, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       Talbot Smith, Senior District Judge, Eastern District of Michigan, sitting by designation.

   PER CURIAM.

In this case the petitioner asks us to issue a writ of mandamus to Chief Judge Devitt of the district court for the District of Minnesota, requiring him to vacate a stay of proceedings in an action brought by Allen Applegate, the petitioner, against Interstate Steel Company, an Illinois corporation and a respondent herein.

The meager record before us discloses that Applegate served as a sales representative in Minnesota for Interstate’s steel products until his agency contract was terminated on October 2, 1973, under circumstances giving rise to disputes between the parties. Interstate commenced an action against Applegate in the Circuit Court for Cook County (Chicago), Illinois, in November 1973, seeking damages and an injunction against his alleged use of its customer lists and trade secrets in his present business. It served Applegate with a summons and complaint on November 14, 1973. On December 26, 1973, Applegate filed a diversity action against Interstate in federal district court for the District of Minnesota for past due commissions in the sum of $40,000 and other relief. The district court, by order filed May 23, 1974, stayed, on motion of Interstate, Applegate’s federal action pending final disposition of the Illinois state action. Applegate contemporaneously dismissed his action in federal court and commenced a new but virtually identical action for his commissions in Minnesota state court. Interstate promptly removed the state action to federal court under 28 U.S.C. § 1441(a). It then moved to stay proceedings on the basis of Judge Devitt’s stay order issued on May 23, 1974, in the earlier action in federal court. Judge Devitt granted a stay of proceedings on September 16, 1974, and Applegate thereupon brought the instant application for a writ of mandamus.

At oral argument and by brief, counsel for Applegate charged that Interstate’s Illinois counsel brought the action in Illinois in bad faith and after misrepresenting that Interstate desired to engage in settlement negotiations. An affidavit by Applegate’s counsel, which stands unrebutted, recites that he (Applegate’s counsel) first spoke with Interstate’s Chicago counsel on October 12, 1973, and that six days later Interstate’s counsel indicated, by letter, interest in a settlement and advised him that “[y]ou will be hearing from me soon again shortly after Mr. Evans [apparently an official of Interstate] returns to the country.” The affidavit goes on to recite that, without further word or explanation, Interstate filed the state action against Applegate in the Circuit Court for Cook County. Applegate’s counsel, in the same affidavit, also questions the good faith of Interstate in bringing the state court action for an injunction against the alleged disclosure of its trade secrets by Apple-gate in view of its failure even to seek a temporary injunction. Additionally, Applegate’s counsel asserts that cases in the Circuit Court of Cook County are delayed for at least three years before trial.

We note that such affidavit, although dated May 17, 1974, was not filed with the federal district court until September 17, 1974, and that the facts stated therein may not, therefore, have been considered by Judge Devitt at the hearing of May 20, 1974, on Interstate’s initial motion for an order staying the federal court proceedings.

Also, at oral argument before us, Applegate’s counsel stressed the great delay incident to obtaining any relief in the Illinois action. He asserted that if Applegate were to seek to present his claim for commissions as a permissive counterclaim in the Illinois action and were to demand a jury trial on the claim, the case would not be reached for trial for another five years.

Applegate and Interstate disagree on the effect which a judgment in the state action in Illinois will have upon the federal action. Applegate’s counsel stated in oral argument that the two actions are sufficiently different that a judgment in the state action under the existing pleadings will not be res judicata with respect to the federal action. Interstate, relying upon Mattel, Inc. v. Louis Marx & Co., 353 F.2d 421 (2d Cir. 1965), contends that all issues raised in the two actions could and should be tried in the state action and thereby implies that a judgment in the state action could prove res judicata with respect to the federal action. We will assume that the state and federal actions approach identity and will accept Interstate’s counsel’s characterization, during oral argument, of the federal action as “duplicitous” of the state action.

The precise question now presented— whether a district court may stay proceedings in an action pending the outcome of a similar or identical state court action filed before the federal action— has not been before this court in more than 70 years. In Barber Asphalt Paving Co. v. Morris, 132 F. 945 (8th Cir. 1904), this court granted mandamus relief to a petitioner whose federal court diversity action for damages for breach of contract had been stayed pending the outcome of proceedings in state court. The court stated:

The reason for the rule that the pend-ency of an action in a state court is no bar and furnishes no ground for the abatement of another action for the same cause between citizens of different states in the federal court is that the latter court has concurrent jurisdiction of such controversies with the courts of the state, and that citizens of different states have the constitutional right to the independent opinion and judgment of the judges of the national courts upon the questions presented by their controversies at least until those questions have become res adjudicata by the judgments of other competent courts. [Id. at 951.]

Cf. Redditt v. Hale, 184 F.2d 443, 446 (8th Cir. 1950); Armour & Co. v. Miller, 91 F.2d 521, 524-527 (8th Cir. 1937). Some courts of appeals allow a federal district court the discretion to stay its proceedings in deference to a pending state court action. See Aetna State Bank v. Altheimer, 430 F.2d 750, 755-756 (7th Cir. 1970); Amdur v. Lizars, 372 F.2d 103, 106-107 (4th Cir. 1967). Cf. Landis v. North American Co., 299 U.S. 248, 254-255, 57 S.Ct. 163, 81 L.Ed. 153 (1936) (stay of actions in one federal district court pending outcome of an action in another federal district court). Other federal appellate courts, however, express the view that a federal district court should not stay its hand in deference to a pending state court action except in exceptional circumstances where resort to state court serves an important interest in the orderly administration of justice. See Mach-Tronics, Inc. v. Zirpoli, 316 F.2d 820, 826-828 (9th Cir. 1963); Ermentrout v. Commonwealth Oil Co., 220 F.2d 527, 530 (5th Cir. 1955). See generally 7A C. Wright & A. Miller, Federal Practice & Procedure § 1838 (1972).

Given the unsettled status of the law on this subject and a record which indicates that not all relevant information has been presented to the district court, we believe it is appropriate to remand this case to the district court for consideration whether its stay order should now be modified. On remand, the parties should have the opportunity to supplement the record concerning probable delay incident to litigating all issues between the parties in the Illinois action. The district court should determine, in considering whether to terminate the stay, whether Interstate practiced bad faith “stalling” tactics, as alleged by Applegate, by filing the state action. Fairness should be weighed in granting or denying a stay pending the outcome of a previously commenced state court action. Aetna State Bank v. Altheimer, supra, 430 F.2d at 756.

Under the circumstances, as previously discussed, the district court should have the opportunity of reconsidering its stay order. We decline to issue any writ of mandamus at this time. See In re President and Fellows of Harvard College, 149 F.2d 69, 73 (1st Cir. 1945).

Accordingly, we remand this case to the district court so that petitioner-Applegate may request it to reconsider its stay order in the light of the factors outlined in this opinion. The petition for writ of mandamus is denied without prejudice to petitioner. No costs are assessed.

      . The district court’s stay orders recite no reasons for a stay other than the existence of the pending action between the parties in Illinois.

      . In Altheimer, the court noted:
      Conceivably state action could be quite unreasonably delayed or other factual situations not now anticipated might develop in the state litigation which would cause the district court on appropriate petition to desire to reactivate and to go forward with the pending but presently stayed action. [430 F.2d at 756.]