Meyer v. Milliken
| Docket Number | 14155. |
| Decision Date | 27 December 1937 |
| Citation | 76 P.2d 420,101 Colo. 564 |
| Parties | MEYER v. MILLIKEN et al. |
| Court | Colorado Supreme Court |
Rehearing Denied Feb. 21, 1938.
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. A judgment of dismissal was entered and the plaintiff brings error.
Reversed and remanded, with directions.
W. E. Clark, of Denver, for plaintiff in error.
Alter & Upton, of Denver, and C. R. Ellery, of Cheyenne, Wyo., for defendants in error William B. Milliken and Margaret M. Milliken.
Farrar & Martin, of Denver, Harold H. Healy, of Casper, Wyo., and M. B. Holt, Jr., of Denver, for defendant in error Ohio Oil Co.
Y. A. Land, of Denver, for defendant in error Texas Production Co.
The parties are Before this court in the same order as in the trial court and reference will be made to them as plaintiff or Meyer, and defendants, or the latter will be mentioned by name, as Milliken, Transcontinental Oil Company, the Ohio Oil Company, and Texas Production Company.
Prior to August 31, 1922, Meyer, now deceased, then a resident of Wyoming, procured an oil and gas prospecting permit from the United States government on lands in Moffat county, Colo., known as the 'Hamilton Dome' on which is located the 'Moffat Pool.' On the above date the Transcontinental Oil Company, by written agreement, contracted to pay him 1/16 of the net profit production from oil operations on the lands, and bound the successor and assigns of the company thereby. W. B. Milliken, a defendant, witnessed this agreement. Milliken and his son Carl S. asserted a claim to a 2/3 interest in the 1/16 interest contracted to Meyer, but on May 3, 1924, after oil had been produced from the lands, Milliken contracted with the company for a 1/32 of the net production, and in this transaction, he and his son assigned and transferred to the company all their interest and claims of every kind and nature against Meyer, pertaining to any and all lands in Moffat and other counties in Colorado or the 1/16 interest of Meyer in the profits therefrom. In February of 1927, Milliken, in an action filed in the district court of Lincoln county, Wyo., against the Transcontinental Oil Company upon an alleged claim of a 35 per cent. interest in lands and production of the Transcontinental Oil Company both in Wyoming and Colorado, sought the cancellation of the contract for the 1/32 interest theretofore entered into on May 3, 1924, alleging fraud on the part of the company. On application of the company, removal of the case was had to the federal court at Cheyenne, Wyo., and later was dismissed by Milliken without prejudice. In July of 1927, he filed a like action in the district court of Carbon county, Wyo., against the company and joined Meyer as a defendant, alleging a 'joint adventure agreement' between Milliken, Meyer, and the Transcontinental Oil Company, and charged defendant Meyer and defendant company with a conspiracy to defraud him. Therein he prayed an accounting from the defendants, and that the contract with the defendant company for a 1/32 interest be canceled. Upon service of process in Wyoming, the company appeared and answered. Meyer, being served with a copy of summons and complaint in the City and County of Denver, Colo., March 30, 1928, made no appearance either in person or by attorney. Not until May 15, 1931, was the case tried to the court upon the issue as made between Milliken and the defendant company. July 11, 1931, the court entered its decree in favor of the defendant company, finding that the contract of May 3, 1924, for payment by the company to Milliken of the 1/32 of the net profits from the production of oil and gas, and the contract of same date, wherein Milliken and his son Carl S. Assigned their claims against Meyer, as heretofore mentioned were valid. The decree recited that the contracts were entered into in good faith and kept by the company; that there was no fraud or conspiracy on its part; and that Milliken had accepted, benefited by, and ratified the contracts. The prayer for cancellation of the contract for the 1/32 interest was denied, the cause dismissed as to the defendant company, 'with prejudice,' and judgment given the company against Milliken for costs.
What then follows, in the same decree, is the origin of the controversy in the case now Before us. After first entering the default of Meyer, who had been served with process in Colorado, the court made a finding against him in favor of Milliken, in the face of its finding that Milliken, by his contracts--found to be valid--had assigned, for a paid and received consideration, his every claim against Meyer including the 1/16 interest in the net profits from the Transcontinental Oil Company. The court found that Milliken was entitled to 1/4 of the 1/16 interest of production that was to be paid to Meyer by the Transcontinental Oil Company under its agreement of August, 1922, and the value of the 1/4 thus decreed was found to be $30,392.88 to the date of the decree, for that amount judgment was entered against Meyer, and the company was enjoined from paying Meyer, and Meyer from receiving, more than 3/64 of the net profits of the production of the oil. It is pertinent to note here that there is no judgment decreeing the 1/64 interest to Milliken or any other person. Long Before Milliken commenced the action in Wyoming, and in June, 1923, the Transcontinental Company had disposed of a 1/2 interest in the lands in Colorado, the profits from which are here involved, to the Texas Production Company, a defendant in error here, which latter was to drill and develop the lands and assume the obligations of the Transcontinental Oil Company with Meyer. In April, 1931, the Ohio Oil Company, a defendant in error, acquired the remaining interest of the Transcontinental Oil Company in the lands and the production, also agreeing to perform the terms of the Meyer agreement with the Transcontinental Oil Company. The Ohio Company, through its attorney, participated in Milliken's Wyoming suit against the Transcontinental Company and Meyer, and after the decree hereinBefore mentioned, it withheld 1/64 of the payments due Meyer under the contract and so continued to withhold same from him until his death, and since, from plaintiff in error individually and as his administratrix. However, March 16, 1935, upon demand of Margaret Milliken, wife of Milliken and assignee of his judgment against Meyer, it paid her $4,355.49 from the moneys withheld from Meyer, and made later payments, amounting in all to $4,829.49, and so doing acted in behalf of the Texas Production Company as well as for itself. After July 11, 1931, the date of the Wyoming decree, and beginning December 30, 1931, Meyer wrote the following letters to the accountant of the Ohio Oil Company; its reply follows each letter:
'Denver, Colorado
'December 30-1931.
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