On Motion for New Trial or Rehearing
This cause is now before the Court on the motion of defendant, James Weir, *314for a new trial or a rehearing with respect to the order of this Court overruling Weir’s motion to vacate and set aside an execution sale of his interest in certain lands in Chicot County, Arkansas, which sale was conducted by the Marshal following the Court’s rendition of summary judgment in favor of the plaintiff.1 The motion has been submitted on the entire record in the case, memorandum briefs, and oral argument. The Court is convinced from its consideration of the materials before it that the motion is without merit and must be overruled.
The Court finds it unnecessary to discuss all of the averments of the motion. However, Weir’s principal contentions call for some comment.
1. Following the entry of the Court’s original judgment the Government sued out a writ of execution (fieri facias), and the sale was conducted pursuant to that writ. The procedure followed was that prescribed by the laws of Arkansas for the conduct of execution sales. See Rule 69(a), Federal Rules of Civil Procedure, 28 U.S.C.A. No effort was made to comply with the requirements of 28 U.S.C.A., sections 2001 and 2002 which relate to sales of realty under any order, judgment or decree of a United States District Court. It is claimed by movant that this non-compliance with the sections just mentioned rendered the sale void.
When the validity of the sale was attacked originally, the non-compliance with the federal statute was not asserted as a ground of attack, and it may be doubted that the contention based upon that statute should be considered when raised for the first time in connection with a motion for a new trial.
Aside from that, however, the Court is convinced that the federal statute, which is derived from the Act of March 3, 1893, Ch. 225, 27 Stat. 751,. relates only to judicial sales, and has no application to execution sales. The original statute was so construed in Yazoo & Mississippi Valley R. Co. v. City of Clarksdale, 257 U.S. 10, 18-19, 42 S.Ct.. 27, 66 L.Ed. 104, and was likewise so construed in Prudential Insurance Co. of America v. Land Estates, Inc., 2 Cir., 90 F.2d 457, and Champion Box Co. v. Manatee Crate Co., 5 Cir., 75 F.2d 340.
In the Clarksdale case, supra, the Court, said (p. 19 of 257 U.S., p. 29 of 42 S.Ct.):.
“We think that the language of this act limits its application to judicial sales made under order or decree of the court and requiring confirmation by the court for their validity, and that it does not extend to sales under common-law executions which issue by mere praecipeof 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. The sale in such a case depends for its validity on the marshal’s compliance with the requirements of law. * * ”
And in the Prudential case, supra, it was said (p. 458 of 90 F.2d) :
“ * •* * (The statute) is limited in its application to judicial sales made under order or decree of the court and require confirmation by the court for their validity. * * * A judicial sale is one made by the-court through a duly appointed and *315commissioned officer, the essential element being that the court assumes the character of seller. * * * ”
In the instant case the judgment which the Court rendered did not order the sale of any property of Mr. Weir, either realty or personalty. The Court simply rendered a money judgment for a penalty in favor of the United States, and execution issued upon the request of the United States Attorney.
In an effort to escape the force of the ■cases above cited counsel for Weir contends that the statute has been amended since those cases were decided, and that the statute now applies to execution sales. The Court has carefully examined the original Act as it appears in the Statutes at Large and has also examined later statutes which have amended the original Act. While the language of the Act has been modified to some extent, the Court sees nothing in the modifications which would indicate any Congressional intent to make the statute applicable to ordinary execution sales. With certain exceptions and modifications not here relevant, it is essentially the same statute that it was when first enacted.
2. It is contended that the Marshal’s levy on Weir’s property was excessive, and that the Court erred in refusing to enjoin the sale. Weir’s application for an injunction was not filed until the day before the sale was scheduled to take place. The Government responded to the application promptly, and the application was denied by the Court. In its order denying the application the Court stated that it could not be determined at that time or indeed until after the sale whether the levy was excessive, and the Court feels that it was correct in that connection. Further, as the Court pointed out in its memorandum opinion accompanying its order of November 14, 1963, the Court is not persuaded that in the circumstances the levy was excessive.
The argument that the Court erred in refusing to enjoin the sale seems to be based in part on the theory that the federal statutes which have been mentioned were applicable and that the Marshal had no right to proceed under State law. That argument is answered fully by the holding that the federal statutes were not applicable.
A further contention is made that the application for an injunction amounted to the exercise of selection rights under Ark.Stats.1947, §§ 30-401, 30-421, and 30-422. The Court did not at the time consider, and does not now consider, that the application for injunctive relief was in any sense an attempt to exercise rights under the Arkansas statutes, and in its order denying the application the Court said: “ * * * it does not appear that defendant has sought to avail himself of the rights of selection provided by Ark.Stats. 30-401, 30-421, 30-422.”
3. It is contended further that assuming that the conduct of the sale was governed by Arkansas rather than by federal law the Court erred in holding that Weir waived his rights under the Arkansas statutes referred to in the preceding portion of the opinion. The Court discussed the matter of waiver fully in its opinion of November 14, 1963, and will not repeat that discussion. The Court adheres to its view that Weir effectively waived his rights under the Arkansas statutes.
4. In connection with his motion Weir now asserts that the bins in which his rice was stored were not locked, and that the Marshal could and should have levied on the rice in preference to the land. This assertion is somewhat surprising in view of the testimony which the Court heard at the hearing which was held in connection with Weir’s original attack on the sale. That testimony was to the effect that the bins were locked, that the Marshal requested Weir to come out to his farm and open his barn and the bins so that the Marshal could make a levy on personal property, and that Weir refused to do so. In his own testimony at that *316hearing Weir did not indicate that the bins were unlocked and neither did his witness, Charles H. Smith. The Court found that the bins and barn were locked, and that Weir refused to open them. Those findings will not be disturbed. Further, as pointed out in the Court’s November memorandum the Marshal was not under a mandatory duty to seize personalty in preference to realty in the absence of a selection by Weir, and Weir refused to make any selection.
5. In the motion and in the course of his argument counsel for Weir takes exception to certain findings of the Court relative to Weir’s failure to supersede the original judgment of the Court pending his unsuccessful appeal to the Court of Appeals. It is argued in effect that the Court told Weir that his farm could not stand for the judgment, and that he would be required to post either a cash bond or a paper bond with a corporate surety thereon. That argument is based on what is at best a misunderstanding of what transpired between the Court and Mr. Weir prior to the sale.
The record reflects that on April 4, 1962, about two weeks before the sale, Mr. Weir filed a “request for delay in execution of judgment.” In that pleading he asked that execution be stayed pending his appeal. He did not post or offer to post a bond of any kind. On or about April 12, 1962, the Court had a conversation with Mr. Weir in the course of which Weir indicated that he wanted the sale stayed but was unwilling to post a bond. He insisted that the property which had been seized was worth much more than the judgment against him and constituted adequate security.
The Court pointed out to Mr. Weir that in order to stay the sale he would have to post a bond, but that if the value of his land approached the valuation which he put upon it, he would have no difficulty making a personal bond. And in the Court’s order of April 12 denying Weir’s application for a stay it was stated expressly that the judgment would, be stayed upon Weir’s posting a supersedeas bond in the sum of $23,000, conditioned as prescribed by law, and “with qualified corporate surety thereon, or-with one or more personal qualified sureties to be approved by the Court.”
In view of the value of the land, had. Weir tendered a bond signed by him and by any other person, it would have in all probability been approved as a matter of course, but, as indicated, Weir refused to file any bond of any kind. In addition, as stated in the November opinion, Weir had the opportunity to supersede down to the moment of the sale, and he had friends present at the sale who were-ready and willing to sign a supersedeasbond as Weir’s sureties thereon.
6. The final point to be discussed is the contention that Weir has-been denied procedural due process. It is quite true that the Court has not held a. formal hearing in connection with every-pleading which Weir has filed in this case. But, every contention that he has advanced has been considered carefully, to the extent that Weir was entitled to have it considered in this action, and his contentions have been passed upon in the-manner in which such contentions are usually handled in this District under the-local rules of the Court. The Court is fully convinced that the procedures followed here have not prejudiced any of Weir’s rights and that he has been accorded both substantive and procedural due process.
This has been a long drawn out and hard fought case. The order which is about to be entered will not terminate the controversy between Weir and his adversaries, but subject to Weir’s right to appeal it will put an end to this particular lawsuit. Remaining issues between the parties will have to be threshed out in the new suit which has been mentioned or in still other litigation.
. The sale was conducted in 1962 and Weir’s interest in the lands involved was sold to L. J. Warren of Lake Providence, Louisiana. Subsequently, Mr. Warren assigned his certificate of purchase to Cap-tan Jack Wyly and others, and the assignees are opposing Weir’s present motion. The original motion to set the sale aside was not filed until more than a year after the sale took place. That motion was overruled on November 14, 1963, and the instant motion was then filed, as were other motions and counter motions. In-January of the current year the assignees commenced a plenary suit against Weir which action has for its purpose theevietion of Weir from the lands which were the subject of the sale. Following a hearing on February 5, 1964, the-Court’s order of November 14, 1963, was amended in certain respects not pertinent to this opinion.