Humble Oil & Refining Co. v. Sun Oil Co., 12792.

• Decision Date: 25 June 1949
• Docket Number: No. 12792.,12792.
• Citation: 175 F.2d 670
• Parties: HUMBLE OIL & REFINING CO. et al. v. SUN OIL CO.
• Court: U.S. Court of Appeals — Fifth Circuit

175 F.2d 670 (1949)

HUMBLE OIL & REFINING CO. et al. v. SUN OIL CO.

No. 12792.

United States Court of Appeals Fifth Circuit.

June 25, 1949.

Gordon Boone, Corpus Christi, Tex., Allen V. Davis, Corpus Christi, Tex., Jacob S. Floyd, Alice, Tex., R. E. Seagler, Houston, Tex., and Nelson Jones, Houston, Tex., for appellant.

Frank J. Scurlock, Dallas, Tex., and Sam G. Croom, Houston, Tex., for appellee.

Before HUTCHESON, SIBLEY and McCORD, Circuit Judges.

PER CURIAM.

Suing for the title and possession of the leasehold estate in and under described tracts of land and to remove cloud therefrom, and alleging in the complaint the need to go upon lands of defendants to make a survey, appellee, plaintiff below, alleged that a mere order pursuant to Rule 34 would not accomplish the desired purpose, and prayed for a preliminary injunction restraining defendants from interfering with plaintiff's making such survey.

The injunction granted, defendants have appealed. As grounds for reversal they put forward two grounds. One of these is that Rule 34,¹ Federal Rules of Civil Procedure, 28 U.S.C.A., provides a plain, adequate, and complete remedy for the discovery appellee claims it needs and the injunction ordered was improvidently issued. The other is that if in any case an injunction in lieu of Rule 34, Discovery, may be issued, this is not such a case, for the evidence showed that the facts to be developed by the proposed survey are not material to the establishment of the boundary line in dispute.

Appellee meets these contentions head on. It urges as to the first ground: that it is concerned with mere matters of form and not of substance; that all the procedural steps required by Rule 34 were complied with; that the injunction was sought merely as an incident to a Rule 34 order; and that Rule 37, prescribing the consequences of refusal or failure to comply with such order is not in this particular case adequate to secure compliance. So urging, appellee insists that the injunction was properly issued.

As to the second ground, appellee insists: that the standards of materiality for the purpose of discovery before trial are considerably broader than at the trial; that the facts sought to be established by the survey are material to the controversy; and that, viewed from the standpoint of substance, the issuance of the injunction was right and proper.

Of the opinion that appellant's first ground for reversal is well taken and that the order must be reversed on that ground, we find it unnecessary to consider or discuss the second ground.

Looking at the grant of the injunction, as it was intended to be, and was, issued by the district judge, as an order not in aid of discovery under Rule 34, but entirely independent of it,² we think it clear that it was improvidently granted.

Looking at it, as appellee now insists in his brief we should do, as an injunction in aid of Rule 34, we think it equally clear that it was improvidently granted. First, it is quite clear that the procedure to obtain it was not begun or carried on under Rule 34. Second, Rule 34, construed in connection with Rule 37, makes definite provision for the consequences of a refusal to make discovery or failure to comply with the order, one of which is that the failure to comply shall be considered a contempt.

No equitable reason, therefore, can be advanced for the grant of an injunction, the only effect of which is...