text:
    AMERICAN MORTG. CORPORATION v. SMITH (two cases).
    Nos. 3468, 3504.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 18, 1931.
    S. A. Williams, of Dallas, for appellant.
    Levens, McWhorter & Howard, of Lubbock, for appellee.
   RANDOLPH, J.

Cause No. 3468 is an appeal from an order of the court overruling a plea of privilege, and cause No. 3504 is an appeal from a trial on the merits.

The appellee filed his suit in the county court of Lubbock county against the appellant and one J. C. Roberts, constable of precinct No. 1 of Lubbock county, Tex., seeking recovery of damages for the convei-sion of an automobile of which he was alleged to be the owner. The appellant alleges that the defendant J. O. Roberts is a resident of Lubbock county, Tex., and that the defendant American Mortgage Corporation has its principal office and domicile in Dallas county, Tex. The appellant filed its plea of privilege to be sued in the county of its residence, Dallas county, Tex. This was duly controverted by the plaintiff, and on hearing before the trial court the plea of privilege was overruled, and from such order overruling the plea, the defendant mortgage company has appealed.

The plaintiff’s petition alleges his ownership of an automobile and conversion thereof by the defendants. In the affidavit controverting the plea of privilege, plaintiff further alleges by way of copying the allegations of his petition:

“That the defendants knew or should have known that the automobile belonged to the plaintiff. That they had no rights therein. Further it was an attempt on the part of defendants to coerce him into paying the debt of another that he was in no way liable for and that he had no knowledge of; that said defendants maliciously, willfully, fraudulently, wrongfully and unlawfully, without any sufficient excuse or reason, took said automobile from the possession of the plaintiff and converted it to tñeir own use with an utter disregard of plaintiff’s rights therein. * * * Further said affidavit sets out the residence of J. O. Roberts as being in Lubbock County, Texas, and also alleges that said conversion and trespass complained of occurred in Lubbock County, Texas, and was 'a conversion for the use and benefit of the defendants and that the cause of action, therefore, arose in Lubbock County, Texas.”

Subdivision 9 of article 1995, R. O. S. 1925, provides that a suit -based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed or in the county where the defendant has its domicile.

Subdivision 23 provides that suits against a private corporation,' association, or joint-stock company may be brought in any county in which the cause of action or a part thereof arose.

Suit for conversion is properly brought in the county where the conversion of property occurs, as well as by reason of said subdivision 23. Bowers v. Bryant-Link Co. (Tex. Com. App.) 15 S.W.(2d) 598; Grayburg Oil Co. v. Powell, 118 Tex. 354, 15 S.W.(2d) 542. The trial court, therefore, did not err in overruling the defendant’s plea of privilege.

On the Merits of th'e Case.

As stated in the foregoing, this suit was brought by the plaintiff to recover damages due the plaintiff for the value of an automobile alleged to have been converted by the defendants. On hearing the ease, the trial court rendered judgment that the plaintiff ■take nothing by reason of his suit against the defendant J. C. Roberts, and as to the mortgage company, submitted to the jury .the following issue for their answer:

“Special Issue No. One. What do you find was the reasonable market value of the Chevrolet ear in question at the time it was taken from Smith? Answer in dollars and cents.”

The jury answered that the value of the automobile at that time was $325.

It will be seen that the trial court, by the submission of only the one issue, decided all other questions in the case in favor of the plaintiff. This being true, we will now consider the questions presented by the defendant mortgage company, who alone appealed from the judgment.

Plaintiff alleges error in the trial court’s permitting evidence to be introduced aliunde the record by the plaintiff to show the invalidity of the judgment of the justice court of Dallas county and that the exclusion of the certified copy of the judgment of said justice was error.

The plaintiff testified substantially that he owned a Chevrolet car No. 4035481. That on March 5, 1930, was the last time he had it in his possession; that he first came into possession of it'when he bought it .from the Gough Motor Company, doing business in Lubbock, Tex. When he first saw this car it was on the used ear lot belonging to the Gough, Motor Company, and he asked the price of it of the salesman for that company. The salesman told him that he would have to go and see Mr. Gough. Plaintiff then went and talked to Gough, and Gough and plaintiff made a trade and the papers were made out; the plaintiff being 'allowed $150 for his old car. The plaintiff was to pay the balance of the purchase price of the car in weekly installments of $50. At the time he purchased the Chevrolet car, the Gough Motor Company gave him a bill of sale to the ear. At the time he purchased the ear, nothing was said about there being a mortgage on the car he bought and he had no actual notice of 'any such mortgage.

On or about March 5, 1930, the- constable came and showed the plaintiff a paper and told him there 'was another mortgage and took the car. Plaintiff has not had the car since. The plaintiff did not consent to the taking of the ear. At the time the constable took the ear, its reasonable cash market value was $400. The plaintiff was shown wh'at was called a citation, just showed it to him, but did not give him a pap.er of any kind. The paper he saw told the officer to take possession of the car, or something to that effect. He does not remember whether the paper was signed by Mr. Fly, justice of the peace of Dallas county.

There was introduced in evidence a copy- of a chattel mortgage note for $242.40, payable in installments of $24.24, beginning September 24, 1929, and on the 1st of each month thereafter for nine months, signed by James W. Odell, and payable' to the order of Nolan E. Whitlow & Company and reserving a chattel mortgage lien upon a Chevrolet motor vehicle, type I. M. P. London sedan, model 1928, manufactured 1928, serial No. 3 AB 32221, motor No. 4035481, license No. 983-643, year of license 1929, purchased (new) March 1, 1928, at a cost of $928 (including $214 in trade), now in my (or our) possession, unincumbered, usually kept at Lubbock, Tex., extra tire and bumpers. A transfer of said chattel mortgage note from Nolan E. Whitlow & Company (by J. O. Jones) to the American Mortgage Company was indorsed on the back thereof, and a copy of this mortgage note was deposited with the county clerk of Lubbock county, Tex., on the 21st of August, 1929.

The deputy tax collector of Lubbock county testified as to the numbers of ithe registered car and the dates of such registration, which is immaterial to the discussion of the case hereinafter had.

The defendant mortgage company’s bill of exception No. 2 was reserved to the action of the trial court in excluding a certified copy of the following judgment:

“American Mortgage Corporation vs. Jas. W. Odell, et al. No. 30,950.
“In the Justice Court, Precinct No. One, Dallas County, Texas.
“3/10/30. This day came plaintiff, American Mortgage Corporation, a corporation, by its attorney of record, and the defendants, Jas. W. Ódell and E. L. Smith, and Gough Motor Company, a corporation, though duly cited to appear and to answer in the manner and for the length of time as required by law, having failed to appear and wholly made default, wherefore, no jury having been demanded, the Court after hearing the pleadings and the evidence adduced thereon in said cause, is of opinion that the law and the facts are for the plaintiff; and it further appearing to the court that plaintiff’s cause of action is founded upon a chattel mortgage lien and note, in writing, executed by said defendant, Jas. W. Odell, and delivered to plaintiff, secured by chattel mortgage lien upon one certain Chevrolet sedan automobile, Motor No. 4,035,481, and License No. (1929) 983-643.
“It is therefore ordered, adjudged and decreed by the court that the plaintiff, American Mortgage Corporation, do have and recover of the defendant, Jas. W. Odell said sum of $177.18 its principal debt, plus additional sum of $17.70 attorney’s fee and with interest at the rate of ten. per cent per annum from the 21st day of December, 1929, together with all its costs in this behalf expended, for which it may have its execution.
“It is further ordered, adjudged and decreed by the Court that the chattel mortgage lien upon the above described chattel property be, and the same hereby is, foreclosed; that all liens and claims of the defendants Gough Motor Company, a corporation, and of E. L. Smith, be and same are hereby declared inferior and subject to' the lien of' plaintiff, American Mortgage Corporation; that an order of sale herein issue to the Sheriff or any Constable of Lubbock County, Texas, or of any other county in which said chattel property may be found, commanding him to seize and to sell the same as under execution in satisfaction of this judgment; that under the terms of such sale he shall' place the purchaser in possession and with all the title and interest of the said defendant, Jas. W. Odell; and if said property cannot be found, or if the proceeds of such sale be insufficient to satisfy this judgment, then the officer executing this order shall make the money, or any balance thereof remaining unpaid out of any other property of the defendant, Jas. W. Odell, as in case of an ordinary execution.
“B. H. Ely,
“Justice of the Peace, Precinct No. 1, in and for Dallas County, Texas.
“I hereby certify that the above and foregoing instrument is a true and correct copy of judgment entered in cause No. 30,950— American Mortgage Corporation vs. Jas. W. Odell, et al.
“Witness my hand, this the 1st day of April, 1930. B. H. Ply, Justice of the Peace, Precinct No. One, Place No. 2, Dallas. County, Texas.”

The bill also shows the following proceedings had in the county court of Lubbock county:

“There also being in evidence the certificate and copy of the original bond of the said justice, same duly certified to by the County Clerk of Dallas County; this said judgment should have been admitted in evidence as it shows upon its face that it is a final judgment of a court of competent jurisdiction, and so conclusive of any issue or question which it adjudicates or disposes of as shown by such record.
“Upon objection by the plaintiff the court excluded said judgment, and refused to permit same to be read to ithe jury, upon the grounds that same was immaterial, irrelevant and had no place in this present case.
“This defendant, American Mortgage Corporation, duly excepted to such ruling of the court and herewith tenders its bill of exceptions, and asks that same be signed and made a part of the record in said cause, which is accordingly so done. * * *
‘.‘Approved, allowed and ordered filed as part of the record herein with the following qualifications:
“The foregoing bill is approved as to pages 1 and 2 thereof with exception of the last line on page 2. As to the last line on page 2 and page 3 there was no- such evidence offered, neither was it a part of the judgment, and should form no part of the bill.
“By way of explanation it was shown by 'incontroverted evidence that at the time the purported judgment was rendered by the Justice of the Peace that the plaintiff in this cause had filed a plea of privilege to the suit pending in Dallas; that the plea of privilege was not controverted. The plea of privilege was introduced in evidence and later read to the jury under the following circumstances:
“The attorney for plaintiff in this cause stated as follows:
“ ‘At this time I wish to read the plea of privilege to the jury.’
“Mr. Benson: ‘We object to it because, the Court please, it shows it was filed too late.’
“Mr. Howard: ‘It has been introduced for thirty minutes.’
“Mr. Benson: ‘If it was we did not know it. I object to it anyway because it is immaterial and irrelevant and shows on its face to be filed under the law too late because the citation so shows and the testimony shows that it was served in March and that was filed sometime in April.’
“The Court: ‘Where was it filed?’
“Mr. Howard: ‘In that Court down yonder. The certified copy of it shows to have been filed on April 3rd, referring to the calendar and we had until the 7th to file it.’
“The Court: ‘Yes, you had until the 14th of April to file it. Objection overruled.’
“The plea of privilege was read to the jury. Whereupon the defendant, American Mortgage Company, offered in evidence the judgment set out in his bill of exception, whereupon the plaintiff Smith objected, as follows:
“Mr, Howard: We object to the introduction of this purported judgment for the reason that it has not been shown that .there were any pleadings in the ease that would authorize the judgment of any character. It has not been shown that the'Justice Court of Dallas County had jurisdiction of either the person or the property of this plaintiff, it has not been shown that the court in Dallas County had jurisdiction of the property or had jurisdiction to foreclose a mortgage against the property. Bor the further reason that it has been affirmatively shown by the testimony that the Court did not have jurisdiction of either the person or property of this plaintiff. We ohject for the further reason that it has not been shown that any officer having proper authority rendered such judgment. We object to it for the further reason that it is not shown in said judgment whether it disposed of all of the' parties to the suit or not. It does not show or purport to show whether it disposed of all of the issues raised by the pleadings, if any. We object to it because from the record in this case, the judgment is clearly shown to be void for want of proper service, for want of jurisdiction. We object to it for the further reason that it affirmatively shows on its face that the Court did not have jurisdiction to render any such character of judgment on the property involved as subject-matter in that suit, and as the subject-matter of this suit. And especially .do we object on the ground that the Justice Court did not have jurisdiction to render the judgment in view of the fact that it has been shown affirmatively that the property in litigation was in value beyond the jurisdiction of the Justice Court of Precinct One, Dallas County, Texas.
“We further object to the introduction of the judgment for the reason that there is no finding in said judgment that E. B. Smith’s interests, if any, were adjudicated, nor does the said judgment purport to foreclose his interests, and for the further reason that there is no finding in said judgment as to the value of the property, in order to show that the value was within the jurisdiction of the Justice Court.
“The Court: Objection sustained.”

The statement of facts shows that the terms of the justice court, precinct No. 1, Dallas county, convene on the second Monday in each month.

The statement of facts contains the defendant E. L. Smith’s plea of privilege in the justice court to be sued in Lubbock county, the county of his residence, which was filed in said cause in the justice court, cause No. 30,-950, American Mortgage Corporation v. James W. Odell et al., then pending in said justice court, which said plea was filed in that court on April 3, 1930.

It appears from the record, therefore, that the judgment in said cause in the justice court was rendered on the 10th day of March, 1930, the second Monday in March, 1930. Consequently, the plea of privilege was filed too late for that term of court and was ineffective. But it is not necessary for us to consider whether or not the plea of privilege was filed in due time, for there is no compliance with the requirements of article 2007, R. C. S. 1925, that the plea be sworn to. In the matter being considered there is no affidavit to support the pleading. The following acknowledgment, in lieu of an affidavit, is attached to the plea:

“State of Texas, County of Lubbock.
“Before me, the undersigned authority, on this day personally appeared E. L. Smith, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed.
“Given under my hand and seal of office, this the 15th day of March, 1930.”

(Signed officially by the officer as notary public.)

Not only was the plea not filed in time, but there being no affidavit attached to and supporting it, the plea was ineffective. Certainly if the defendant Smith, had been charged with perjury predicated upon this acknowledgment, it could not be sustained. As laid down, Quoted, and approved in the cases of Whitemore v. Wilson, 1 Posey, Unrep. Cas. 213; Smith v. Banks (Tex. Civ. App.) 152 S. W. 449; E. L. Witt & Sons v. Stith (Tex. Civ. App.) 265 S. W. 1076, the test of whether an affidavit is sufficient is that it is sufficient upon which to predicate a perjury indictment. There is in this case not even the semblance of an affidavit.

The plea not having been filed in time and not being sworn to, the justice court properly ignored it.

The plea of privilege being itself a part of the record, if it had been filed in time and properly sworn to, could have been received in evidence for the purpose of attacking the validity of the judgment in the justice court of Dallas county; the record being silent as to any action taken on the plea of privilege.

The judgment of the justice court reciting due service, evidence aliunde the record was not admissible in a collateral attack on same that such judgment was not taken upon due service. The attack on the judgment was clearly collateral and in no sense a direct attack. The recital of due service was conclusive of any defects in the service unless presented on appeal or by bill of review made in time. If the judgment was not obtained on due service, the defendant Smith should have taken necessary steps to have presented this matter to the justice court in which the judgment was rendered. 34 O. J. 760 § 1184 (2).

The judgment of the justice court is attacked by appellee Smith on the gound that the proof in the case at bar shows that the automobile upon which a lien was foreclosed in the justice court was worth much more than the amount of the jurisdiction of the justice court and that there were no pleadings in that ease setting out the value of the property upon which the lien was sought to be foreclosed.

In the first place, in the writ of sequestration issued out of the justice court and levied upon the car in question, the car is alleged to be of the value of $190. There is no transcript from the justice court which gives us a notation of the pleading. As pleadings in justice courts are either written or oral, we have no guide to determine whether or not the value of the car was, in fact, alleged. If there was no written pleading setting out the value, we are required to presume that the oral pleading supplied this allegation in order to support the judgment.

Article 2388, R. O. S. 1925, provides that the pleadings in justice court shall be oral, except where otherwise Specially provided and that a brief statement thereof may be noted on the docket.

In the case of Houston & T. C. Ry. Co. v. Cement Co., 112 Tex. 139, 245 S. W. 644, 646, in answer to a certified question from the Court of Civil Appeals from the Fifth District, “Do the pleadings of the plaintiff in the justice court, and as amended in the county court, present a case evidenced by or founded upon such written contract?” the Commission of Appeals, necessarily with the approval of the Supreme Court, lays down the rule:

' “In passing upon this question it must be kept in mind that this was a case originating in the justice court, and that rules applicable to pleadings in the justice court and amendments thereto must be the guide for our determination of the sufficiency of such pleadings.”

In that case, quoting from the opinion in the case of Fidelity Dumber Co. v. Bean (Tex. Civ. App.) 203 S. W. 782, that court approves the holding:

“The form in which the cause of action or ground of defense is so stated is of no importance, and if from all that is stated, oral or written, the court can ascertain what right the plaintiff asserts and what defense the defendant interposes, the pleading is sufficient,” citing Rector v. Orange Rice Mill Co., 100 Tex. 593, 102 S. W. 402.

Chief Justice Key of the Austin Court, in the case of Barnes v. Sparks, 62 Tex. Civ. App. 451, 131 S. W. 610, 611, lays down the following rules applicable to the question before us:

“The first assignment complains of the action of the court in overruling the plaintiff’s general demurrer to the defendant’s answer; the contention being that the answer should have negatived the exceptions contained in the statute. The rules of pleading applicable to cases originating in district and county courts do not apply to cases originating in justice of the peace courts, although such cases may finally be tried in the county court. In such cases, though the parties may re-plead in the county court, such pleadings may be oral, and are not required to be as full and specific as is required when a case originates in the county court. The written answer was filed October 11, 1909, and the case was tried October 22, 1909; and, as a matter of fact, it does not affirmatively appear that the case was tried on the answer referred to alone. It may be that when the ease was tried the defendant interposed an oral plea as a substitute for his written answer, or as an amendment curing the defect complained of. Hence we conclude that the first assignment fails to disclose reversible error.”

However, as stated above, there is nothing introduced in the record from the justice court to show any pleading in that court. Hence, the question is not properly before us.

. The questions herein discussed are the controlling questions on this appeal. The other assignments and propositions are either controlled by the matters discussed or will not arise on another trial.

For the reasons stated, we reverse the judgment of the trial court and remand the case for a new trial.


source: Caselaw Access Project

author: LANE, J.

license: Public Domain

text:
    HERMANN HOSPITAL ESTATE v. NACHANT et al.
    No. 9496.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 17, 1931.
    Rehearing Denied March 12, 1931.
    J. W. Lockett, of Houston, for appellant.
    Ward & Ward, of Houston, for appellees.
   LANE, J.

This suit was instituted by G. H. Hermann against August Nachant, J. R. Nachant, N. B. Knight, and Mamie Knight on July 28, 1914, in .the form of trespass to try title to approximately 22 acres of land in the P. W. Rose survey in Harris county. G. H. Her-mann died during the pendency of the suit, and the trustees of his estate were substituted as plaintiffs, who adopted the name of Hermann' Hospital Estate, and under that name .they are prosecuting this suit.

On November 8, 1926, more than twelve years after the suit was first instituted, the suit was dismissed for want of prosecution.

On January 12, 1927, plaintiffs filed what they termed their bill of review, praying that the order of dismissal mentioned be set aside and that the cause be reinstated on the docket of the court with the same force and effect as if it had never been dismissed.

On the 1st day of July, 1927, the court entered an order wherein it is recited that the court had heard plaintiffs’ original bill of review and motion to set aside the order of dismissal and the answer of defendants thereto, and the evidence and arguments of the parties thereon, and had announced that the order of'dismissal would be set aside, and had granted leave to -plaintiffs to file an amended bill of review. It is then recited that plaintiffs did not. have notice of such dismissal until more than- thirty days after the entry of such order and not until after the adjournment of the term a.t which such order was entered; that, after hearing the evidence relative to the matter, the court was of opinion that the case ^ould be reinstated, and it was so ordered. It is also recited in the order that plaintiffs tendered their evidence on the merits, but the defendants, not desiring to then try the case on the merits, objected to such evidence, and that, as the court had other cases set for trial which had precedence over the trial of this ease, the ease should be postponed until later called.. The trial of the cause was then postponed to November 14, 1927, and from time to time thereafter until October 21, 1929, at which time it was tried upon what the • plaintiff's termed -their second bill of review and amended petition, filed on June 10, 1927, prior to the date on which the dismissal order was set aside, and two years prior to the trial of the cause on its merits,- and upon the amended answer of defendants filed January 18,1928, several months after the entry of said dismissal order wherein they demurred generally to the plaintiff’s petition and by special demurrer pleaded as follows: “Defendants specially demur and except to said alleged amended bill of review wherein it contains allegations for the purpose of setting aside a certain judgment of dismissal entered by this court in this cause on the 8th day of November, A. D. 1926, and more particularly referred to in said alleged amended bill of review, because said alleged motion or amended bill of review does not show any grounds for. •the setting aside of the final judgment of this court, said order of dismissal in said cause, of which, special demurrer and exception these defendants pay judgment of the court.”

They averred that the judgment of dismissal entered.on November 8, 1926, was and is a final judgment in the cause; that it was not appealed from, and is now in full force and effect. They pleaded such judgment in bar of further proceedings in the cause. They denied, generally, and specially pleaded ^be statutes of limitation of three, five, and ten years.

On the 26th day of October, 1929, the court overruled the general and special demurrers of defendants and proceeded to the trial of the cause on its merits, and, before submitting any issue to the jury selected to try the cause, the court announced the following findings: “It appears to the court and the court finds that the plaintiffs sued for a tract of land 177 varas wide from North to South by 708 varas long from East to West containing approximately 22.18 acres in the P. W. Rose Survey, and that as a matter of law the plaintiffs have the record title to the Northern 144 varas wide from North to South by 708 varas long from East to West containing approximately 17.66 acres off of the North part of the 22.18 acres sued for, which approximately 17.66 acres plaintiffs are entitled to recover unless defendants have acquired title by five years limitation to that part thereof within defendants’ enclosure, which enclosure includes approximately 14.96 acres of the South part of said 17.66 acres, and the court further finds as a matter of law that the defendants have the record title to 36 varas wide from North to South by' 708 varas long from Bast to West, and including approximately 4.51 acres of the South part of the approximately 22.18 acres sued for, which approximately 4.51 acres defendants are entitled to recover, and the court finds that there is an issue of fact as to whether the defendants are entitled to recover by limitation the approximately 14.96 acres, being 708 varas long from East to West by 116 varas wide from North to South at its East end, and 122 varas wide from North to South at its West end, and being off of the South side' of the 17.6 acres aforesaid, and North of and adjoining the 4.51 acres aforesaid, and the court decided to submit such issue of fact to the jury.”

Having so found, the court submitted to the jury the sole and only question as to whether or not defendants had acquired title to the 14.96 acres mentioned -by the statute of limitation of five years.

In answer to the question submitted, the jury found that defendants and those under whom they claim had been in peaceable, adverse, and continuous possession of said 14.96 acres of land; that they had cultivated, used, and enjoyed the same, paying taxes thereon and claiming under deeds duly registered, for a period of five consecutive years prior to the 2Sth day of July, 1914.

Upon such findings of the court and the verdict of the jury, judgment was rendered in favor of defendants for the 4.51 acres mentioned in the court’s findings and the 14.96 acres involved in the findings of- the jury, aggregating 19.47 acres, which were described in the decree by metes and bounds, and in favor of plaintiffs for the 2.71 acres mentioned in the court’s findings, which is also described by metes and bounds in the decree.

From the judgment entered in favor of defendants for the 14.96 acres, the plaintiffs have appealed.

At the outset we are met by an objection of appellees to the consideration by this court of appellant’s appeal and a prayer for an affirmance of the judgment in their favor. They urge that the judgment of dismissal of the cause on November 8, 1926, was a final judgment, and that the order of 'the court purporting to set aside such judgment was and-is a nullity and did not affect the validity of the dismissal decree, and therefore the judgment sought to be appealed from to this court is not a final judgment from which an appeal will lie.

As already stated, the suit was dismissed on the 8th day of November, 1926, and that ton January 12, 1927, after the term of the court at which the decree of dismissal was entered, appellants filed a motion to reinstate the case and a -bill of review, and on the 10th day' of June, 1927, they filed their amended . bill of review and second amended petition upon which they finally went to trial of the cause on its merits. On July 1, 1928, the court entered an order purporting to set aside the judgment of dismissal and reinstating the cause, which reads as follows: “Therefore it is here now ordered, adjudged and decreed by the court that the judgment Or order of this court dismissing this case for lack of prosecution on or about the 8th day of November,'1926, shall be and the same is hereby cancelled and set aside and shall henceforth be null and void and held for naught just as if the same had never been rendered or entered, and this case is re-instated on the docket of this court with the same force and effect and witli the same status as if it had never been dismissed, hut inasmuch as the other pending business of this court prevents the court from hearing the fuli evidence on the merits of this case and completing the trial at this time the same is set down for further hearing on the merits and as to the title of the land involved for the 14th day of November, 1927, to which judgment and order of the court defendants then and there in open court excepted.”

Appellees contend that there was no final judgment setting aside the order of dismissal and that the court therefore could not in the trial last had render a valid judgment on the merits of the original controversy without at the same time hearing evidence to support plaintiffs’ excuse for not promptly moving to reinstate the case and have that question readjudicated, which it did not do; that, while the court had authority to hear and determine the issues of mistake and accident alleged as grounds for setting aside ithe judgment of dismissal and at the same time to -try the issues pertinent to the merits of the suit, it was not authorized to render judgment on the merits until the issues made by the plaintiffs in their motion and bill of review to set aside the order of dismissal were likewise disposed of by the same judgment.

It is clearly apparent from the record that the only judgment purporting to set aside the judgment of dismissal was that entered on the 1st day of July, 1927, some two years prior to the trial of the case on its merits, and that there was no attempt to adjudicate that matter in the trial of the case on its merits. But, in the decree setting aside the order of dismissal and reinstating the cause, the count states that, after hearing the evidence relative to the rights of the plaintiffs to have such order set aside and to have the cause reinstated, it finds that plaintiffs had a meritorious cause of action and that they had shown good cause for the setting aside of the order of dismissal and for the reinstatement of the cause.; -that “thereupon the plaintiffs tendered their evidence on the merits but as the defendants do not desire to now try the case on the merits and object to Such evidence * * * the trial of this case will be postponed until the date hereinafter specified.” The date specified was November 14, 1927.

It is thus made to appear that after the cause had been dismissed the plaintiffs filed a bill of review at a subsequent term of the court, setting up causes why the court should exercise its equitable powers and set aside the judgment of dismissal, reinstate the case, and permit the plaintiffs to enter into a trial of the merits of the ease, that the court upon the filing of.such bill heard the pleadings, the evidence, and argument relative to the matters presented, and that upon such hearing concluded that plaintiffs had set up equitable grounds for the relief prayed for, and that, having so concluded, rendered judgment, the effect of which was to place the case on the docket subject to trial on its merits.

It is apparent that necessarily the first steps to be taken by the court, if the case was to be heard on its merits, was, first, to set the former judgment of dismissal aside; and, second, to reinstate the same on its docket. It appears that these steps were taken on the 1st day of July, 1928, and that the plaintiffs thereupon and at that time tendered their evidence on the merits, but that, as defendants sought a postponement of the trial on the merits, such postponement was had.

We can hardly bring ourselves to the conclusion that, where a case is reinstated upon the application of the plaintiffs after being dismissed, the court must force the defendants at once into a trial of the merits of the ease, and that, if it should not do so, a judgment of reinstatement is rendered null and of no effect. Since it is shown by the judgment rendered that at the time the case was reinstated plaintiffs tendered their evidence on the merits of the case and asked! that the court proceed with the trial of the case on its merits, and since it appears from such judgment that the hearing on the merits was postponed at the request or desire of the defendants, appellees (defendants in the trial court) are in no position to now insist that the judgment of reinstatement must fall as a nullity and that the judgment on the merits must likewise fall, as no evidence was heard upon the trial of the merits in support of plaintiffs’ excuses for not promptly moving for a reinstatement of the cause and to have that question readjudicated.

Appellees’ contention that this appeal - should be dismissed is overruled.

Having disposed of the contention of ap-pellees, we shall now consider the contention submitted by appellants for a reversal of the judgment.

Appellants contend, first, that the court erred in submitting to the jury the issue as to whether appellees had title to the 14.96 acres of land lying just north of lots 21 and 22 of the subdivision mentioned herein, under the provisions of the five-year statute of limitation; and, second, that the finding of the jury that the defendants and those under whom they claim had been in peaceable, .adverse, ahd continuous possession of the 14.96 acres of land, and had cultivated, used, or enjoyed the same, paying the taxes thereon and claiming under deeds duly registered, for a period of five consecutive years prior to- the 28th day of July, 1914, was without evidence to support it.

They contend that, since the plat of the Blount land calls for the corner of the Gla-dich, a fixed and known corner, as the northeast corner of lot 20, and since it shows thht a line running due west from the Gladich forms the north line of lots 20, 21, and 22 and calls for the lines of these lots from north to south to he 020 varas, without calling for any fixed object, such distance call will control the location of the south line of the lots, and hence land lying north of a line 620 varas from (the south.line of lots 21 and 22 is no part of either of said lots, and therefore the calls in the deeds under which appellees hold does not embrace any land north of the north line of said lots, and as a corollary appellees are not holding under a deed or deeds conveying to them any land north of the north line of said lots and are not entitled to recover under the five-year statute of limitation.

Appellants insist, further, that to support the five-year limitation title claimed by ap-pellees it must be shown that the taxes due on the land in their possession for the five consecutive years next to the filing of suit for same were paid by appellees, and that such land was assessed by such a description as gave notice to the real owner that appellees and those under whom they held were assessing the real owner’s land; that the showing only, as was done in this case, that such taxes were assessed only on lot 22 and the north half of lot 21, does not' show that such taxes were assessed and paid on any land north of the north boundary lines of such lots, and therefore appellees were not entitled to a recovery of the 14.96 acres lying north of such lines upon their plea of limitation of five years.

Appellees contend that, even if lots 21 and 22, as originally subdivided and located, did not include the land in controversy, nevertheless, as described subsequently in the deeds in their chain of title, such lots do include such land in controversy, and that such subsequent deeds support their claim of five-year limitation.

The evidence shows, that one R. S. Blount owned something more than 1,000 acres of land in the Rose survey in Harris county lying along the east boundary line of said survey, and extending to its south boundary line; same being also the north boundary line of the B. H. Ereeling survey. Blount died, and one J. W. Lawrence was made administrator of his estate. In November, 1871, Lawrence, administrator, by virtue’ of an order of the district court of Harris county sitting in probate matters, subdivided the BKunt land mentioned into lots, and made piat thereof. This plat shows that the most western corner of the Gladich survey was the northeast corner of lot 20 of said subdivision, that the east boundary line of lot 20 begins at said Gladich comer and runs with the west line of the Gladich south 620 varas for its southeast corner, and that from such corner its south boundary line runs west 354 varas for corner. The plat also shows that lots 21 and 22 of such subdivision lie west of lot 20; that the west line of lot 20 forms the east line of lot 21, and the west line of lot 21 forms the east line of lot 22; that the south line of lots 21 and 22 is a line drawn due west from the south line of lot 20; that a line drawn due west from the most western corner of the Gladich survey forms the north boundary line of lots 20, 21, and 22. The plat shows that each of said lots from north to south is 620 varas in length and from east to west 354 varas in width. This plat is shown to have been attached to a report of J. W. Lawrence, ad-, ministrator, of such platting and sale of the land to the court, which report was approved by the court on November 8, 1871. It is shown that such report was recorded in the probate record of Harris county on the 15th day of May, 1909, but there is no showing that the plat was recorded anywhere. There are recitals, however, in some conveyances, that such plat was recorded in deed records.

The record title to lots 21 and 22 passed by mesne conveyance from the estate of Blount to Mary Stewart.

Mary Stewart, by her deed of date April 28, 1908, conveyed to O. H. Barnes land described as follows:

“Two certain blocks or parcels of land, each containing 40 acres, being a part of the Pleasant W. Rose league situated South of the City of Houston, and known and designated upon a plat and subdivision for the estate of R. S. Blount by A. L. Steele, and recorded in the books of record of deeds in said Harris County, Texas, as lots Nos. 21 and 22, which said plat is here particularly referred to, and further reference is made to the field notes of William Bradburn made September 11, 1899, County Surveyor of said Harris County, Texas, as follows:
“Beginning at an iron pipe 354 varas West of a R. R. Iron, the S. E. corner of the P. W. Rose Survey, league.
“Thence North 620 varas on iron pipe;
“Thence West 708 varas to iron pipe;
“Thence South 620 varas on iron pipe;
“Thence East 708 varas on iron pipe to the place of beginning, containing 80 acres of land, being the same land conveyed to me by deed dated January 12, 1888, from Justin A. Goodhue,” etc.

On September 8, 1908, O. H. Barnes conveyed the same land to Edward F. Rowson and Adolph O. Swanson, with the same description, with the added reference to the preceding deed.

On September 22, 1908, Adolph 0. Swanson and Edward P. Rowson conveyed the same tract of land to John N. Reibel and J. P. Clark, with the same description as the first-mentioned deed.

These purchasers, Clark and Reibel, immediately went into possession, built a house and other improvements in the fall of 1908, and placed a fence around the 80 acres, as described in said deeds, in! the spring of 1909, which fence remained as placed until they sold the land to Nachant, Knight, and Winter on August 24, 1909.

It is shown that appellants were the record'owners of lot 14, which lies just north of and contiguous to lots 21 and 22. It is shown that said lots are wholly within the P. W. Rose survey. It is shown that, in a controversy between one Mclver, who owned land bordering on the north boundary of the Ereeling survey, same being the south line of the Rose survey, as to where such boundary was located, it was agreed that such division line was some 136 or more varas north of where appellants contend the south boundaries of lots 21 and 22 are located, and that such agreed boundary was established in a suit between Hermann and Mclver. as an agreed line. It is shown that, beginning on such agreed line, the calls in the deeds under which appellees, hold, for 620 varas north as the length of the east and west lines of lots 21 and 22, and thence 708 varas east the width of the two lots, would include the 14.96 acres involved in this suit.

The witness W. H. Parker testified that under the direction of Hermann he built for Hermann a fence along the agreed line above mentioned; that Hermann then recognized the agreed line as the south line of the Rose survey.

In view of the facts stated, we think the description of the land as made in the deeds under which appellees hold, which were duly recorded, was amply sufficient to give notice to Hermann that appellees, and those under whom they claim, were claiming and occupying the land involved adversely to Hermann.

We also think that the description of the land as given in the assessment of taxes made by appellees was sufficient to give notice to the world what land was being assessed.

The facts stated, we think, are sufficient to support the finding of the jury complained of, also the judgment rendered upon such finding. The judgment is affirmed.

Affirmed.


author: LANE, J. GRAVES, J.

text:
    LEON v. GULF PRODUCTION CO.
    No. 9439.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 4, 1931.
    Dissenting Opinion Feb. 11, 1931.
    Rehearing Denied March 12, 1931.

      Cole, Cole, Patterson & Kemper and Atkinson & Gaugler, all of Houston, for appellant.
    John E. Green, Jr., Peveril O. Settle, and John Broughton, all of Houston, for appellee.
   LANE, J.

On the 81st day of January, 1918, Elmer Fisher and wife, Martha Fisher, leased to United Petroleum Company certain lands out of which the land involved in the suit hereinafter mentioned is taken. The consideration moving the lessors to make the lease and the conditions and provisions thereof pertinent to the issues presented on this appeal are as follows :

“That for and in consideration of the sum of One Hundred Dollars to us cash in hand paid by said lessee the receipt of which is hereby acknowledged, and the further sum of One Hundred Dollars to be paid monthly thereafter until oil, gas, or other minerals are produced from said premises herein leased in a sufficient quantity that the royalty paid lessor hereinafter provided shall amount to the said sum of One Hundred Dollars per month; or until said premises are abandoned whereupon lessee shall forfeit all rights hereunder and this contract shall be null and void and of no further force and effect, and it is understood that written notice to the lessor is necessary setting forth said lessee’s intention of abandoning said premises before said premises shall be considered" as abandoned; we hereby demise, lease and grant unto said lessee, and its assigns, all of the oil, gas, sulphur and other minerals in and under the following described tract of land; and the exclusive right to prospect and operate thereon for oil, gas, sulphur and other minerals, together with the right-of-way, right to lay pipé lines over, to use water, gas and oil to operate said property, taken from said premises to erect derricks, to build tanks and to. place all necessary machinery or structures on said premises, and to remove all property at any time, that may be placed on said land during the term of this lease by lessee or its assigns.”

Here the land leased is described; then the instrument continues;

“To have and to hold the same unto the lessee, and its assigns for a term or period .of ten years from the date hereof and as much longer" thereafter as oil, gas, sulphur or other minerals is produced in paying quantities thereon, or until lessee is satisfied that oil, gas, sulphur or other minerals in paying quantities cannot be produced from said premises.
“III. Said lessee is here now granted the privilege of entering in and upon said premises and to commence operations thereon for the drilling of a well for oil, gas, sulphur, or other minerals.
“IV. Failure on the part of the lessee to make any monthly payment as is hereinbefore provided for and prior to the time when the royalty shall amount to the said monthly rental, then and in that event this lease shall become null and void, and of no further force and effect. Said monthly rentals are to be deposited or tendered for deposit to the Crosby State Bank, Crosby, Texas, one-half thereof to be deposited to the credit of Elmer Fisher and one-half to the credit of Martha Fisher and it is understood by all parties that such tender shall be considered fulfilling that portion of this contract as applies to paying said monthly rental to keep this contract alive. * * *
“VIII. It is mutually agreed by and between the parties hereto that lessee is authorized to sell, sublet or assign the whole or any fractional part of this lease at any time during the term of this lease. This is a lease for the purposes and of property above described.
“Witness our hands this the 31st day of January, A. D. 1918.
“[Signed] Elmer Fisher
“Martha Fisher
“United Petroleum Company
“By G. W. Hindman, President.”

On the 81st day of October, 1918, Elmer Fisher and wife, Martha Fisher, conveyed the fee to the land leased to the United Petroleum Company, hereinafter called petroleum company, to the Gulf Production Company, hereinafter called production company.

Subleases were made to 30 acres of the leased premises to parties other than to the plaintiff in this suit and his assigns, leaving 84.7 acres unassigned by the petroleum company.

■ On the 9th day of July, 1927, the petroleum company assigned to Guy Hamilton Winfree its lease as to 34.70 acres of the land it had leased from Fisher and wife. Winfree in turn assigned his lease to G. W. Hindman, trustee, and Hindman, trustee, assigned to Isadore Leon on the 1st of March, 1929, all interest he as trustee and Winfree as cestui que trust had in the certain 10 acres of the land involved in this suit, a part of said 34.7 acres of land.

Neither the petroleum company, original lessee, nor any of its assigns, including Isa-dore Leon, at any time availed itself or themselves of the option of putting an end to'the contract of lease by declaring in writing or otherwise that it or they were satisfied that no oil, gas, sulphur, or other minerals could be produced from the leased premises, as provided for in the lease contract. The production company, to whom the fee to all the land was conveyed by Fisher and wife, was paid the $100 per month for ten years, as provided in the contract, and a tender of $100 was made to it for the month next after the end of the ten-year period, which tender was refused by the production company upon its contention that the lease had expired by its terms at the end of the ten-year period. A small amount of oil was produced from the premises during the first year of the lease, but no oil, gas, or other minerals were thereafter produced in paying quantities during the remainder of said ten-year period. Upon the declaration of the production company that the lease had expired, and its refusal to accept the tender made, Isadore Leon brought this suit against the production company in the form of trespass to try title to a leasehold interest in and to the 10 acres of land here-inbefore mentioned, which was assigned to him by Hindman, trustee.

After alleging the facts as stated in the foregoing statement, the plaintiff alleged substantially that the original lessee, petroleum company, and those claiming under it, have spent about $150,000 in developing the leased premises and in prospecting for oil, gas, and other minerals; that several wells have been drilled on the premises which proved that the same is capable of producing oil and gas in paying quantities; that by the actions of the defendant in asserting the lease at an end and its refusal to accept the rental due thereunder a cloud has been cast upon plaintiff’s title to the interest owned and claimed by him; and that because of such cloud and adverse claim it is impossible for him to finance the drilling of wells to produce oil and gas or to sell the same, to appellant’s damage. 1-Ie prayed that title to the leasehold claimed by him be established. He tendered into court the rentals claimed by him to be due and asked that defendant .be required to accept same, and the cloud upon his said title be removed; that defendant be enjoined from interfering in his possession and development of said ten acres of land for the purposes designated in the lease, and that he have judgment against defendant for $10,000 damages.

By defendant’s amended answer upon which it went to trial, it denied generally the allegations of the plaintiff and entered its plea of not guilty.

A jury was impaneled and sworn to try the • case, but upon the closing of the evidence by all parties the court instructed a verdict for defendant. From such judgment the plaintiff, Isadore Leon, has appealed.

Appellant substantially contends: First, that the lease contract entered into between Fisher and wife and the petroleum company by its plain terms provides that it shall continue in force until the lessee, or its assigns, shall declare that it or they are satisfied that no oil, gas, sulphur, or other minerals can be produced from the leased premises in paying quantities, provided the lessee or its assigns shall pay to lessors or their assigns $100 per month during the life of said lease contract, and that since the undisputed evidence shows that no such declaration was .ever made, and that the production company, as-signee of the original lessor, was paid the sum of $100 per month for ten years and was tendered $100 by appellant for himself and ■ all other lessees for the month next after said ten-year period, the court should have held that the lease was in force and effect and have instructed a verdict for appellant upon his request therefor; second, that in the évent the construction of the contract first contended for cannot be placed on the same, that the clause cannot be read out of the lease and therefore creates an ambiguity to be explained by parol testimony;- and, third, that independent of the clause mentioned, the beginning of a well prior to January 31, 1928, the end of the ten-year period, beginning on the 31st day of January, 1918, the date of the contract, which was completed as a producer on February 22, 1928, and which would have continued to produce except for interference on the part of appellee, and the payment or tender of rentals, perpetuated the lease.

It is 'the contention of appellee that the terms of the contract of lease were plain, clear, and unambiguous; that the clause “or until lessee is satisfied that oil, gas, sulphur or other minerals in paying quantities cannot be produced from said premises,” was but an option reserved by and allowed to the lessee to at any time end the contract and release itself of any obligation to pay lessors further monthly payments of $100 per month, by giving notice in writing that it was satisfied that “oil, gas, sulphur or other minerals could not be produced from said premises” ; that there were two forfeiture provisions in the contract, one being the right of the lessors to forfeit it in the event lessee failed to pay to lessors the $100 monthly during the ten-year period mentioned- therein, and the other the right of lessee at any time to terminate it by giving written notice to lessors that lessee was satisfied that no oil, gas, sulphur, or other minerals could be produced on the leased premises; that by the plain, clear, and unambiguous terms of the contract it was to terminate and end ten years from its date, to wit, on January 31, 1928, unless at such time, oil, gas, sul-phur, or other minerals were being produced in paying quantities.

Appellee contends further that appellant is in no position to ask for a perpetuation of the contract upon his contention, made for the first time in this court, that just about three months before the lease would expire by its own terms, on January 31, 1928, one R. P. Bartlett and his associates began to drill a well at some place on the tract of 64.7,0 acres leased by the Eishers to the petroleum company, which was completed as a producer on the 22d day of February, 1928, and which would have continued to produce except for interference on the part of appellee, in that appellant by his pleadings seeks the specific performance of an oil, gas, and mineral lease, and there are no allegations in his petition which would entitle him to a decree of equitable specific performance, and in that the undisputed evidence shows that Bartlett did not drill on the property in controversy and that no drilling operations were ever carried on on the ten acres in controversy, and that' the land upon which Bartlett began to drill a well was not the ten acres in controversy, but was a separate tract from the ten acres involved in this suit.

We overrule the contentions of appellant and sustain appellee’s contention in its entirety.

It appearing from the undisputed evidence, as well as from the agreement of the parties, that no oil, gas, or other minerals were being produced from any part of the land leased by the Eishers on January 31, 1928, or the end of the ten-year period, nor had there been any such production since the year 1920, the lease by its plain and clear terms expired on the 31st day of January, 1928, not by way of forfeiture, but by the express provisions thereof. • It was not in force and effect at the time this suit was instituted.

The clause “or until lessee is satisfied that oil, gas, sulphur or other minerals in paying quantities cannot be produced from said premises,” appearing in the lease contract, creates no ambiguity therein. It is clearly apparent from the instrument as a whole that in making the lease contract the parties intended that, by the clause quoted, the lessee, petroleum company, was reserving the right to terminate the lease at its option by giving written notice to the lessors, at any time, of its intention to abandon the lease to the end that it might be relieved of the further payment of the $100 provided for in the contract. The construction of appellant placed on the clause quoted, if adopted, would ignore the definite and clear provision in the contract that the lessee should have and hold the leased premises for a term or period of ten years from the date thereof and as much longer thereafter as oil, gas, sulphur, or other minerals are produced in paying quantities, would read out of the contract the ten-year provision.

It is the duty of the courts in construing a contract, if possible, to give effect to all of its parts and to give to it its true meaning by a consideration of all of its provisions taken as a whole. It was, as we have already said, clearly expressed in the contract that if at any time the lessee should become satisfied that no oil, gas, sulphur, or other minerals in paying quantities could be produced from the leased premises within' the ten-year period, it would have the right to abandon the lease and be relieved of any further monthly payments. Such contention is in harmony with the ten-year provision and does not nullify and make the ten-year period provision useless or meaningless.

To say that this lease shall remain in force for ten years and as much longer as minerals are produced in paying quantities, and in the next breath to say that this lease shall remain in effect after the ten-year period without the production of minerals, until lessee is satisfied, is too contradictory to have ever been the intention of the parties. One destroys the other.

When the lease says that it shall remain in force for a period of ten years and as much longer as minerals are produced in paying quantities, the length of the lease is named, and the further expression “or until lessee is satisfied that oil, gas, sulphur or other minerals in paying quantities cannot be produced from said premises,” was intended to limit the definitely named time. The lease under its express terms expired at the end of the ten-year period,- because it is agreed that no minerals were being produced on that date. American Window Glass Oo. v. Indiana Natural Gas & Oil Co., 37 Ind. App. 439, 76 N. E. 1006; American Window Glass Co. v. Williams, 30 Ind. App. 685, 66 N. E. 912; Indiana Natural Gas Co. v. Grainger, 33 Ind. App. 559, 70 N. E. 395; Western.Pennsylvania Gas Co. v. George, 161 Pa. 47, 28 A. 1004; Brown v. Fowler, 65 Ohio St. 507, 63 N. E. 76; Bettman v. Harness, 42 W. Va. 433, 26 S. E. 271, 36 L. R. A. 566; Indiana Natural Gas & Oil Co. v. Beales (Ind. App.) 74 N. E. 551; Ellis v. Cricket Coal Co., 166 Iowa, 656, 148 N. W. 887; Van Liew v. Norwood-White Coal Co., 190 Iowa, 79, 179 N. W. 960.

We repeat, to adopt the construction of the contract as contended for by appellant, the provisions that .the lessee should hold the lease for a term or period of ten years from the date of the contract and as much longer as oil, gas, sulphur, and other minerals are produced in paying quantities, would be read out of the contract and the lessee could hold the premises for ten, twenty or fifty years, or indefinitely, so long as it paid $100 per month to lessors and did not notify the lessors in! writing that it was satisfied that no oil, gas, etc., could be produced on the leased premises. To our minds such construction cannot be made.

We now come to a discussion of the contention of appellant that the evidence shows that the lessee, its assigns and successors, prior to January 31, 1928, began the drilling of a well on the leased premises and continued work thereon in good faith until same was brought in as á producer shortly subsequent to January 31, 1928, same being the end of the ten year period, and which would now be capable of producing except for the act of appellee in giving notice that the lease had terminated, and therefore in equity the lease of appellant was continued in force beyond •the ten years and the trial court erred in not so holding, and in instructing a verdict for appellee.

We agree with appellee that appellant is in no position to insist upon the perpetuation of the lease .beyond the ten-year period upon his contention that Bartlett began a well at some point on the 64 acres leased by the Fishers to petroleum company three months prior to' the end of the ten year period mentioned in the contract. Appellant’s contention that his lease was continued in force beyond the ten-year period is supported by neither pleadings nor evidence. There are no allegations by appellant raising the issue as to whether the development work carried on by Bartlett and his associates on a ten-acre tract, a part of the 64-acre tract, but no part of the ten acres involved in this suit, perpetuated the lease he held beyond the ten-year period mentioned in the contract.

Since it conclusively appears that the lease contract came to an end after the ex-i piration of the ten-year period, appellant cannot recover unless he may do so by reason of some equity pleaded by him.

If appellant wished to avoid the effect of the ten-year period stated in the contract, he should have specially alleged the matters of avoidance or explanations upon which he relies to continue the contract in force beyond the ten-year period. The defense of equitable estoppel must be specially pleaded. W. L. Moody & Co. v. Rowland, 100 Tex. 363, 99 S. W. 1112; Carson v. Taylor (Tex. Civ. App.) 238 S. W. 261; Cooper v. Loughlin, 75 Tex. 524, 13 S. W. 37, 38.

In the case last cited it is said:

“In the ease of Raul v. Perez, .7 Tex. 345,( it is said: ‘The principle that the allegata must be broad enough to admit all the necessary proof, and that every material fact must be alleged, has been often declared by this court; first solemnly adjudicated in Mims v. Mitchell, 1 Tex. 443, and sustained by an unbroken train of decisions from that time down to the present. * * * And if there was proof without such allegata, it should be disregarded.’ ”

The undisputed evidence shows that no drilling operations were ever carried on the ten acres upon which appellant claims a lease. The ten acres upon which the Bartletts began the drilling of a well was a separate ten acres from the tract involved in this suit. The undisputed evidence shows that the Bartletts produced no oil from the land upon which they operated, but it is contended by appellant that he had a fine showing only.

We adopt as our own the following from appellee’s brief:

Appellant specifically alleged the acts done by the lessees to keep the leasehold estate in force and effect, but he nowhere alleges that his lease should be kept in force beyond the ten-year period by reason of the fact that the Bartletts were carrying on drilling operations on the ten acres claimed by him. There are no allegations in appellant’s petition ad- ■ vising the appellee that he relied upon the development work carried on by the Bartletts to continue the lease in force after the ten- ■ year term or period. He did not seek specific enforcement on that ground. It was an issue not made by the pleadings. In the absence of such allegations, the appellee was not required to meet that issue. It cannot now be relied upon as a reason for the reversal of the judgment of the court below. The appellant will be confined to the specific grounds set up in the original amended petition seeking specific enforcement of the lease. The appel-lee was not called upon to meet an issue of that character, as there are no allegations in appellant’s pleadings to support it.

It is not contended, and certainly not shown, that the Bartletts produced oil, gas, sulphur, or other minerals in paying quantities from the-demised premises. In fact, it is admitted that no oil, gas, sulphur, or other minerals .had been produced from the leased premises since the year 1920. It is only contended that the Bartletts had a fine showing of oil. The testimony shows that the Bart-letts continued in possession of the ten acres which they held under lease until the summer of 1928, without being disturbed by the appel-lee, and that they were never able to rehabilitate the well which they drilled on their tén-acre tract and they finally abandoned it without producing oil, gas, sulphur, or other minerals in paying quantities. ■

For the reasons pointed out the judgment of the trial court is affirmed.

Affirmed.

GRAVES, J.

(dissenting).

It had been my preference for the question concerning the proper construction of the contract here involved to be certified to the Supreme Court, and an order to that end was heretofore entered; on the subsequent return of the third member of the court who had then been absent, however, by majority action that was rescinded and the cause was decided here, under the interpretation Justice LANE’S opinion puts upon the instrument.^

To that I cannot agree; it seems to me that an anomalous if not grotesque juridical denouement arises when this count solemnly pronounces as, one having authority that the parties in making it never intended by the clause “or until lessee is satisfied that oil, gas, sulphur, or other minerals, in paying quantities cannot be produced from said Xjremises,” that this lease should remain in force a moment longer than ten years if any one of the enumerated minerals was not at that time actually being, produced on the 64 acres, when they themselves as witnesses on this trial, none being parties to nor interested in the suit, all testified that as such contracting, parties they meant no such thing; ■ that, on the contrary, they mutually intended and understood that the lease would not terminate at the expiration of the ten-year period, provided the lessee then believed that oil, gas, or sulphur could be produced therefrom in paying quantities, and the rentals were being paid.

Mr. Eisher, the lessor, testified:

“A. Well, my intention when I leased the land was: I leased it to him for $100.00; I did not know how long it would be, just so they paid me the $100.00 a month, whether for fifty years or a ¡hundred.”
“Q. Was it discussed with you at the time you executed the contract as to what that hundred .dollar clause meant, and that you have just stated was the final outcome of your proposition?”
“Q. Did you all discuss what the clause meant before you signed the lease? A. Yes.”
“Q. And just what you have said in yoúr previous answer was what your intention was, which finally developed as a result of that conversation? A. Yes, sir. * ⅜ * I distinctly leased them the land for as long as they paid the $100.00, whether they drilled or not. ⅜ ⅜ *
“The reason that provision was in there that they pay me $100.00 per month until we got royalties that were more than $100:00 per month, is because I picked that and figured that $100.00' would be more than a living for me. I did expect them to drill on the land at some time, and I did expect the royalties to exceed $100.00' per month. It didn’t make any difference to my wife and I whether they drilled upon this land or not. Certainly it would have, made a difference to me if we could have gotten royalties that amounted to four or five hundred dollars per month. What I mean to say is, when they got ready to drill they could go ahead, and if they wanted to hold it, it was all right with us. Of course I would rather have had a well drilled in on it.
“I did not understand that it was for ten years; I didn’t understand it that way. Just like I have told here, I didn’t have any specific time.” ■

Mr. Hindman, the acting officer of and alter ego for the lessee petroleum company, testified as to the objective of the same clause:

“As an officer of that company I did have occasion to enter into an oil and gas lease with one Elmer Eisher and wife, Martha Eisher, about the 31st day of January, 1918. That lease was executed in the Eisher home out at Barber’s Hill. At the. time of its execution there were present Elmer Eisher and his wife, Walter Keeble, myself, and a notary public.
“Q. Answer the question, Mr. Hindman, what was the intention of the parties as to what that provision meant? A. That the lease should remain in force so long as we kept the rentals paid up, or until we were fully satisfied that oil, gas, and sulphur, or other minerals could not be produced on the land.”

Obviously such lessors and lessee had a legal right to so contract concerning their own property in the land and the means of exploiting it for minerals, there being no suggestion of any fraud between themselves nor as affecting others, nor any as to the contravention of any public policy or authority, wherefore, it would seem, their mutually legitimate and so unmistakably expressed purpose should be enforced. Corsicana Pet. Co. v. Owens, 110 Tex. 568, 222 S. W. 154.

Especially so, when the undisputed evidence showed: (1) That the lessee and its assigns regularly paid the promised $100' per month either in money or oil to the lessors and their grantee, the appellee here, throughout the whole of the specified ten years from January 31 of 1918 up to January 31 of 1928, and then so tendered the latter the $100 payment for the ensuing month of February of 1928, which it refused to accept; (2) that during that ten years of time such lessee and its assigns made reasonable and bona fide efforts to produce oil on the 64 acres, spending about $100,000 in drilling nine wells thereon, some of which for átated periods produced considerable oil; (3) that there was never a time, from the inception of the lease in 1918 up to and subsequent to the appellee’s refusal to accept the proffered continuance of the stipulated $100 monthly payments in February of 1928, that the lessee and its assigns wer,e satisfied that oil, gas, sulphur, or other minerals in paying quantities could not be produced from the land; on the contrary, they still affirmatively believed and asserted on this trial that it could then be so produced.

So that, under these uneontroverted facts, toy analogy to the Owens Case, supra, the question simply is whether the terms of the lease are such as to make this ascertained intention of its makers unenforeible.

How it can he that they are so does not readily occur to me. This was not the ordinary fonm of leases with which mainly, if not exclusively, the authorities cited in support of the majority construction had to do —those called “development” contracts, in which the chief consideration and incentive to the lessors in executing them, there usually toeing otherwise nothing more than a merely nominal quid pro quo, was the expressly contracted-for development, together with the consequently anticipated royalties in minerals. "Whereas, in material differentiation, with these lessors that was a wholly secondary concern, their controlling objective being the very substantial return to them of $100 per month, “more than a living for them,” there being at the same time no obligation whatever by them imposed upon the lessee to drill at all, only the privilege to do so being granted, and the land being in strictly “wildcat” territory when the contract was made.

To contend that such a contract in those circumstances providing for its continuance “until the lessee is satisfied” that production in paying quantities cannot be had is too' indefinite and uncertain to be given any effect at all, at least when the decision of the arbiter so designated is made in good faith, is to inveigh against the clear current of authority, especially in Texas. 21 A. & E. Ency, of Law, page 1236, McDougall v. O’Connell, 72 Wash. 349, 130 P. 362, 131 P. 204; 7 Words and Phrases, First Series, page 6329; 9 C. J. § 115, page 772; G., H. & S. A. Ry. Co. v. Henry & Dilly, 65 Tex. 685; Kilgore et al. v. Baptist Educational Society, 89 Tex. 465, 35 S. W. 145; Jones v. Gilchrist, 88 Tex. 92, 30 S. W. 442; Kettler Brass Mfg. Co. v. O’Neil, 57 Tex. Civ. App. 568, 122 S. W. 900; Martinsburg & P. R. Co. v. March, 114 U. S. 549, 5 S. Ct. 1035, 29 L. Ed. 255.

In my view there inheres in it no such uncertainty, nor yet the claimed repugnance to the preceding recitation that the contract shall remain in force as much longer than ten years as minerals are produced in paying quantities, nor the final insistence — made by way of an asserted alternative — that it must, then, contemplate a perpetual continuance; to me, on the contrary, it simply accords two conditional extensions of time after the running-off of the numerically-stated term of ten years, instead of this foregoing and usual one only, in oil lease contracts, to wit, (1) as much longer thereafter as oil is produced in paying quantities, (2) or until lessee is satisfied that it cannot be so produced; in other words, full accord is here expressed with this appraisal of the legal effect of the contract as a whole appearing in the able reply brief for appellant;

“As we read the lease, every provision is given effect on the following construction: It shall last until (1) the lessee gives written notice of an intention to abandon it, and this Whether before or after the ten year period, (2) for ten years certain without any obligation to drill or to do anything other than pay rentals (Buie et al. v. Porter et al. [Tex. Civ. App.] 228 S. W. 999, 1002; Aycock v. Reliance Oil Company et al. [Tex. Civ. App.] 210 S. W. 848); (3) after ten years if oil, gas and ■other minerals are then being produced in paying quantities, and still further (4) until appellee is satisfied that the same cannot be so produced.
“This gives a reasonable construction to every provision in the lease and shows a meaning for it.”

No perpetuity nor indeterminate condition is here imported, because the clause in question fixed a time ending with a specific occurrence that was definitely ascertainable — that is, until the lessee Should be satisfied that oil, gas, sulphur, or other minerals could not in paying quantities be produced from this land — which privilege, or quest, as I read the authorities, he would be required to exercise not only under reasonable conditions and limitations', but in good faith as well. 24 A. & E. Ency. of Law, p. 1236, cited supra.

It is, moreover, both a matter of common knowledge in the business itself and a generally known fact of a public nature, that, the courts may take judicial cognizance of, without evidence, that subterranean petroleum oil in the coastal plain of Texas is only found in such individual pools, or detached deposits, as are readily exhaustible.

To pick up this, “or until lessee is satisfied that oil in paying quantities cannot be produced,” clause, and hark back with and tie it exclusively to the introductory, detached, and wholly independent right of abandonment there given the lessee — thereby deducing that it was only intended to apply to and limit such particular right, and that within the "ten-year period — seems to me clearly untenable, for these among other reasons: (1) It would so disarrange the structural form of the contract laid down by the makers as to possibly import something they explicitly say they did not mean; (2) the right to cancel given to the lessee in the premises or first part of the instrument would apply just as much to the provision in the habendum clause extending the lease on production in paying" quantities, as it would to the matter of the lessee being satisfied; (3) this quoted provision as to being satisfied was not only put by its authors after, but was stated as a distinctly disjunctive right to the one attending actual production in paying quantities; (4) as heretofore pointed out, the lease considered from its four corners, since it did not require any development or drilling whatever, reasonably indicates its dominating purpose to have been to make sure of obtaining $100 a month income for the lessors over as long a time as possible, even if that result only should flow to them for 50 or 100 years.

While these individual conclusions, if given their full effect, would require the lease as an entirety to be so construed as on its face giving the lessee the right to continue holding! thereunder so long as he paid the rent and in good faith was not satisfied that oil could not be so produced, in much respect for and in deference to the contrary views of both the trial court and the majority of this court, I prefer to and do limit this dissent to the holding that the alternative clause, “or until lessee is satisfied,” at least created such an ambiguity in its meaning as was subject to explanation by parol testimony; wherefore, the giving of the peremptory instruction was reversible error.

The other questions I put behind me, upon such considerations as these: This' lease by its express terms was assignable, and appellant held the ten acres thereof he claimed (regularly down under the original lessee, being therefore in privity of contract and title with it, hence succeeded to whatever rights it would have had therein subsequent to the ten-year period; he sued in trespass to try title to recover the ten-acre leasehold interest, with alternative counts and prayers seeking specific performance, and also asked for general relief; I think his pleading, as against only the general demurrer interposed against it, was sufficient.

Further discussion is deemed unnecessary; in my opinion the judgment should have been reversed, and the cause remanded for a new trial on the facts, at least in so far as concerned the meaning of the contract.


author: HIGHTOWER, O. J.

text:
    McHARD et al. v. NONA MILLS CO.
    No. 2025.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 12, 1930.
    Rehearing Denied March 4, 1931.

      Walter F. Brown and W. F. Tarver, both of Houston, for plaintiffs in error.
    Chas. T. Butler and W. G. Reeves, both of Beaumont, for defendant in error.
   HIGHTOWER, O. J.

On October 29, 1930, the appeal in this case was dismissed by this court upon defendant in error’s motion therefor, based upon the failure of plaintiffs in error’s counsel to brief the case, and thereafter plaintiffs in error filed their motion to reinstate, and it is that motion that we are now to dispose of.

The material facts in connection with the matter now in hand are as follows: The record was filed in this court by plaintiffs in error on July 2, 1930, and thereafter on July 21, by order of this court, the cause was set for submission on October 30, 1930. The clerk of this court, immediately after the setting in this court was ordered, by written notice •mailed to counsel on both sides of the cause, notified them that the cause would be submitted on October 30,1930. The form of this notice was a postal card properly addressed to all counsel in the cause. Mr. Charles T. Butler, counsel for defendant in error, received the card mailed to him in due course of the mail, but counsel for plaintiffs in error have made affidavit that neither of them received the card notifying them of the setting of the cause for submission, and in view of these affidavits we find, as a fact, that neither of the counsel for appellants received the written notice mailed by the clerk of this court to them' notifying them of the setting of this cause for submission.

On the morning of October 29,1930, the day before the cause was to be submitted, counsel for defendant in error filed a written motion praying this court to dismiss this writ of error based on the ground that counsel for appellants had failed to file briefs in the cause both in the trial court and in this court. At the same time counsel for plaintiffs in error filed a written motion praying this court to postpone the submission of the cause as set, and asking this court to reset the cause for submission at such time as would afford counsel for ■ defendant in error time to brief the cause for his client. This'motion was opposed by counsel for defendant in error, and, all counsel for both sides being present in court, both motions were orally argued and1 the motion of counsel for defendant in error to dismiss the appeal was sustained, ^id .that of counsel for plaintiffs in error to postpone submission was overruled, and the appeal was dismissed.

In their motion to reinstate the cause in this court, counsel for plaintiffs in error make two contentions. One of these contentions is (stressed by Mr. Walter F. Brown, counsel for some of the plaintiffs in error) that this court was without jurisdiction to submit this cause until counsel for plaintiffs in error had been notified by written notice from the clerk of this court through registered mail of the setting of this cause for submission, and that for the same reason this court was without power and authority to dismiss the appeal. It is true that the statute, article 1847 R. G. S. 1925, requires the clerk of this court to give written notice by registered mail of the setting of causes in this court, and it is true that the clerk did not comply with that article, in that he failed to register the notices mailed - out, but we cannot agree with counsel for appellant that this court was without jurisdiction or power to submit the cause merely because the clerk had failed to register the written notice to counsel of the setting. It is true that the clerk’s failure to register the notice of the-setting was an irregularity and a failure to comply with the letter of the statute, and it may be possible that on account of that failure or irregularity the written notice of the setting was not received by counsel for plaintiffs in error. It does not follow, however, that this court was without jurisdiction to submit the cause merely on account of the failure of the clerk to give registered notice of the setting. No authority has been cited by counsel for plaintiffs in error in support of their contention in this connection, and we have been unable to find any after search therefor.

The next contention made -by counsel for plaintiffs in error is, in effect, that, since they showed as a fact that they did not receive the clerk’s written notice of the setting of this cause in this court, they showed good cause for their failure to file briefs in this court, and that, therefore^ the appeal should not have been dismissed and should be now reinstated.

Article 2283, R. S. 1925, relative to briefing causes in this court, is as follows: “Not less than five days before the time of filing the transcript in the Court of Civil Appeals the appellant or plaintiff in error shall file with the clerk of the trial court a copy of his brief, which he shall deposit with the papers of the cause, with the date of filing indorsed thereon ; and he shall forthwith give notice to the appellee or defendant in error, or his attorney of record, of the filing of such brief, and in twenty days' after such notice the appellee or defendant in error shall file a copy of his brief with the clerk of said court below, and four copíés with-the clerk of the Court of Civil Appeals.” This is the only statute that we are aware of that makes any provision with reference to the briefing of causes in this court. It is very clear from this statute that counsel for an appellant or plaintiff in error is required to prepare and file a copy of his brief for his client in the trial court at least five days before the transcript in the cause shall be removed from that court and filed in the Court of Civil Appeals'. This statute was not complied with by counsel for plaintiffs in error, and no brief was filed by them in the trial court at any time, and there was no agreement by counsel for defendant in error waiving the filing of the brief in the trial court, nor was there any agreement of any character between counsel for the parties relating to the filing of briefs in this court.

Articles 1847 and 1848, R. C. S. 1925, relate to notices required to be given by the clerks of the Courts of Civil Appeals. Article 1S47 reads as follows: “All notices required herein to be given'to parties or their attorneys of record shall be served by the clerk sending said notice to the attorneys by registered.letter through the mail properly directed. Registration receipts shall be filed and kept by the clerk with the record of the cause.”

Article 1848 provides: “Causes on the trial docket of said court shall be submitted in the order of the date of filing, except as otherwise provided, unless continued to some future time for good cause shown; and the clerk shall notify the parties or their attorneys of record of the date set for hearing.”

It is clear from these two articles that neither of them specifies when the notice to counsel in a'cause pending in this court of the setting for submission shall be given. In other words, it is not specified by either of these articles that the notice that the clerk of the Court of Civil Appeals is required to give counsel of the setting shall be any number of days prior to the setting. So, as far as these articles go, the clerk could give the notice at any time, just so the notice was sent by registered mail in time to reach counsel in the cause in due course of mail. Neither of these articles, either expressly or by implication, relates to the filing of briefs in a cause. In so far as either of these articles is concerned, the clerk of this court would have fully complied therewith had he mailed out by registered mail notices of the setting of this cause to counsel at any time, just so it would have reached them before the case was to be submitted. Therefore, it cannot be successfully contended by counsel for plaintiffs in error that the failure on the part of the clerk of this court to give them registered notice of the setting of this cause was such a failure or neglect on the clerk’s part as resulted in and caused their failure to file briefs in this court at such time as would have afforded counsel for appellee time to file briefs in reply thereto.

In their motion to postpone submission, filed as we have above shown, counsel for plaintiffs in error make the statement that one of them received actual notice of the setting through a Houston newspaper on the evening of October 23, 1930, just a week before the cause was to be submitted, and that on the next morning that counsel notified the other counsel for appellants by phone that he had notice in the newspaper tnat this cause would be submitted on October 30th, and thereupon both of them got in communication with the clerk of this court-and with counsel for defendant in error relative to the submission, and, being unable to procure an agreement with counsel for defendant in error for postponement of the submission, came over in person on the day before submission and presented, as we have stated, their motion to postpone. It is thus shown that counsel for all of the plaintiffs in error had actual notice of the setting of the cause in this court about a week in advance of the setting, though it was not given by the clerk of this court either by registered mail or otherwise. But in so far as the effect of that notice is concerned, it was just as effectual as if it had been given at that time by the clerk of this court through registered mail. And if the clerk of this court at that time had mailed to counsel for plaintiffs in error a notice of the setting for submission, and had registered the notice, he would have complied fully with any duty required of him under articles 1847 and 1848. But if he had given to counsel for appellants the notice, as required by those articles, it would not have availed anything more than the actual notice they received through the Houston paper, and they could not, as they admit, have prepared and filed their briefs in this court in time to have permitted counsel for defendant in error a reasonable time to reply thereto.

But counsel for plaintiffs in error strenuously insist that the provisions of articles 1847 and 1848, relating to the notice and manner of notice to be given by the clerk of the Courts of Civil Appeals to counsel in a cause, are for the purpose of notifying counsel of the setting of causes, so that they may have plenty of time to prepare and file briefs in the appellate court. In other words, counsel for plaintiffs in error contend that these articles have reference to the briefing of causes in the Courts of Civil Appeals and clearly imply that the notices provided for in these articles shall be given at such time as will affoid counsel an opportunity to -brief causes. We cannot agree with this contention. To do so would be to-treat article 2283 as meaningless. That article, as we have shown, expressly requires counsel for an appellant or a plaintiff in error to prepare and file a brief for his client in the trial court at least five days before the transcript is removed from that court. Therefore, if articles 1847 and 1848 were intended to-give counsel for appellants or plaintiffs in error notice of the setting of causes in the appellate court in sufficient time before the actual setting for submission in which.to prepare and file briefs, then articles 1847 and 184S would practically nullify article 2283, which, as we have stated, is the only statute relating to the briefing of causes in the Courts of Civil Appeals. In this connection we might state that we agree with the contention advanced by counsel for defendant in error, which is that the purpose and intent of articles 1847 and 1848 was to notify counsel of the setting of causes in this court so that they may he present and make an oral argument, or, if they did not desire to do that, then to file a written argument in connection with their briefs in the cause. By giving articles 1847 and 1S48 this construction they would not he in conflict with article 2283. 'But if we .give them the construction contended for by counsel for plaintiffs in error, they would he in conflict with article 2283, and, as we have stated, practically nullify that article.

Now let us see if counsel for appellants have shown good cause for their failure to timely prepare and file briefs for their clients in this cause so as to postpone the submission that had been ordered by this court. In the first place, counsel for appellants were guilty of neglect in failing to prepare and file briefs for their clients in the trial court before they took the transcript from that court and filed it in this court. This was a clear failure to comply with a statutory duty imposed upon them, and, although such failure on their part would not necessarily result in a dismissal of this writ of error, yet it is to be considered in determining whether counsel for plaintiffs in error have shown good cause for their failure to file briefs in this cause, as they were required to do. In the next place this record shows without dispute that during the time it was pending in this court (practically four months) no inquiry whatever was made by counsel for plaintiffs in error of the status of the cause here, and no agreement was sought with counsel for defendant in error touching its submission or the filing of the briefs. The cause was set in this court in its numerical order, and counsel do not claim that they were misled by reason of any change in the docket of this court, as to the number of causes pending ahead of them or the numerical order in which it would probably be reached. They do contend that counsel for defendant in error waived their dereliction of duty to file briefs in the trial court by not moving, within thirty days after the transcript reached this court, to dismiss on that ground. We think counsel for plaintiff in error are correct in their contention that counsel for ap-pellee could not have the appeal dismissed on the ground of their failure to file briefs in the trial court, as should have been done, and without citing the authorities they are numerous to the effect that article 2283; requiring briefs of the appellant or plaintiff in error to be filed in the trial court before removing the transcript, is not mandatory, and motions to dismiss filed by appellees or defendants in error based upon that ground have been many times overruled because the failure there did not deprive counsel for appel-lees in those cases of an opportunity to file reply briefs in the appellate court. Here, however, we have a different question. No briefs were filed either in the trial court or this court for plaintiffs in error, and, as we have stated, there was no agreement with counsel for defendant in error relating to the filing or failure to file briefs in either court.

That brings us to the question insisted upon by counsel for defendant in error. I-Ie insists that his client had two valuable rights in this court One was to have a reasonably sufficient time to brief the cause for his client in reply to such briefs as were or should have been filed by counsel for plaintiffs in error, and the other was to have the case submitted in its due order of submission. Under the authorities in this state, counsel for defendant in error is correct in this contention. It was so held in Niday v. Cochran, 48 Tex. Civ. App. 259, 106 S. W. 462, and in Goodhue v. Leckie (Tex. Civ. App.) 176 S. W. 647, and by this court in West Louisiana Bank v. Terry, 229 S. W. 639.

The way this matter came up, this court was required to either dismiss this writ of error upon the motion of counsel for defendant in error, or to grant the motion filed by counsel for plaintiffs in error to postpone the submission to some future date. If we had granted the motion to postpone, it would have deprived defendant in error of one of the valuable rights which the above-cited authorities hold it had, and, believing, as we did, that no sufficient cause had been shown by counsel for plaintiffs in error for their failure to' file briefs, we had no other alternative than to dismiss the writ of error.

From the foregoing conclusions it results that the motion to reinstate the cause in this court should be overruled, and such has been our order.