Rehearing
Denied March 4, 1940.
Error
to District Court, City and County of Denver; Robert W
Steele, Judge.
Suit to
enjoin enforcement of judgment by Violet L. Meyer, both
individually and as administratrix of the estate of Raymond
D. Meyer, deceased, against William B. Milliken, the Texas
Production Company, the Ohio Oil Company, and another
wherein the Texas Production Company and the Ohio Oil Company
filed cross-complaints. To review a judgment entered on
remittitur from the Supreme Court, plaintiff brings error
and defendants cross-assigned errors.
Modified
and, as modified, affirmed.
BAKKE, Justice.
This
case was Before us on a former occasion. Meyer v
Milliken, 101 Colo. 564, 76 P.2d 420, 429. The
concluding paragraph of our opinion then announced reads as
follows: 'The judgment is reversed and the cause remanded
with directions to enter judgment in favor of plaintiff and
against W. B. Milliken and Margaret Milliken, and each of
them, and the Texas Production Company and the Ohio Oil
Company and each of them, for any and all monies shown to
have been paid the Millikens by virtue of the Wyoming decree
and that an order be entered enjoining the defendants, the
Millikens, from in any way interfering with the collection by
plaintiff of the proceeds from the interest herein involved
or to be involved in the future.'
Effort
was made by defendants in error to have our action reviewed
by the Supreme Court of the United States, but certiorari was
denied on the ground that, 'it does not appear from the
record that there is a final judgment.' Milliken v.
Meyer, 305 U.S. 598, 59 S.Ct. 63, 83 L.Ed. 379.
On
remand, no further evidence was offered and no changes in the
pleadings were made in the district court. Both sides
presented a form of judgment, and each objected to the form
submitted by the other. The court signed the one tendered by
defendants in error, which,
omitting the caption, was in words and figures as follows:
'This
matter coming on to be heard pursuant to the remittitur of
the Supreme Court of the State of Colorado, the plaintiff
appearing by her attorney, W. E. Clark, the defendants
William B. Milliken and Margaret M. Milliken appearing by
John G. Reid and Jean S. Breitenstein, their attorneys, the
defendant Texas Production Company appearing by Yates A.
Land, its attorney, and the defendant The Ohio Oil Company
appearing by Harold H. Healy, its attorney,
and it appearing to the Court that none of the parties have
additional evidence to be offered and that the evidence
adduced at a former trial as shown by the Bill of
Exceptions contained in the transcript of record of this
cause in the Colorado Supreme Court should be held and
considered as all of the evidence herein and the Court
having examined said evidence and having heard the
arguments of counsel and having examined the remittitur of
the Supreme Court and being now well and fully advised in
the premises doth find that the judgment and decree of the
District Court of Carbon county, Wyoming, entered on July
11, 1931, in favor of the defendant W. B. Milliken and
against R. D. Meyer, now deceased, is void and of no
effect; that the plaintiff is entitled to all of that
certain one-sixteenth of the net profits derived, or to be
derived, from the oil and gas operations covered by, and
provided for, in that certain agreement entered into
between R. D. Meyer and Transcontinental Oil Company and
dated August 31, 1922; that the defendants W. B. Milliken
and Margaret M. Milliken should be enjoined and restrained
from in any way interfering with the rights of the
plaintiff therein and thereto and from in any way
interfering with the collection by the plaintiff of the
proceeds of said interest which have accrued and which may
hereafter accrue; and that the plaintiff is entitled to
judgment herein in accordance with the prayer of her
complaint.
'It
is accordingly considered, ordered, adjudged, and decreed,
'1.
That the judgment of the District Court of Carbon county,
Wyoming, entered on July 11, 1931, in that certain action
entitled W. B. Milliken, plaintiff, v. Transcontinental
Oil Company, a corporation, and R. D. Meyer, defendants,
the same being docket No. 2148 in said Court, is null,
void and of no effect.
'2.
That plaintiff do have and recover of and from the
defendants, William B. Milliken and Margaret M. Milliken, and each of them, and Texas
Production Company and The Ohio Oil Company, and each of
them, the sum of Four Thousand Eight Hundred Twenty-nine
and 49/100 Dollars ($4,829.49), which said sum is the
total of moneys shown to have been paid to the said
Millikens by virtue of the aforesaid Wyoming judgment,
together with interest on said sum of Four Thousand Eight
Hundred Twenty-nine and 49/100 Dollars ($4,829.49), at
the rate of six per cent. per annum from the 29th day of
October, 1935, which interest is the sum of Nine Hundred
Sixteen and 68/100 Dollars ($916.68), and making the sum
total of said judgment so rendered and to be entered Five
Thousand Seven Hundred Forty-six and 17/100 Dollars
($5,746.17), together with the costs by plaintiff
incurred herein, both taxed and to be taxed, and let
execution issue therefor.
'3.
It is further ordered and adjudged that defendants The Ohio
Oil Company and Texas Production Company do have and
recover the same amount so adjudged against them of and
from the defendants William B. Milliken and Margaret M.
Milliken and each of them, and that defendant Texas
Production Company do have and recover the same amount so
adjudged against it of and from the defendant The Ohio Oil
Company; provided, however, that in the event the
defendants William B. Milliken and Margaret M. Milliken, or
either of them, pay, satisfy and discharge the judgment
rendered against them in favor of plaintiff herein, then
and in that event defendants The Ohio Oil Company and Texas
Production Company shall satisfy and discharge their
judgment herein given against said defendants William B.
Milliken and Margaret M.
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