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

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation175 F.2d 670
Docket NumberNo. 12792.,12792.
Decision Date25 June 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.


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...

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10 cases
  • Castillo-Plaza v. Green, CASTILLO-PLAZ
    • United States
    • Court of Appeal of Florida (US)
    • 24 mai 1995 Castillo-Plaza as a pure injunction against communication or as an order in aid of discovery, see Humble Oil & Ref. Co. v. Sun Oil Co., 175 F.2d 670 (5th Cir.1949) (error to enjoin defendants from interfering with making of survey under discovery rules); Humble Oil & Ref. Co. v. Harang, ......
  • Metex Corp. v. ACS Industries, Inc., 84-5159
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 14 novembre 1984
    ...This use of an injunction has, we believe, been appropriately rejected by the Fifth Circuit. See Humble Oil & Refining Co. v. Sun Oil Co., 175 F.2d 670 (5th Cir.1949). We conclude that Sec. 1292(a) does not grant jurisdiction over appeals from denials of injunctions that are sought solely t......
  • Humble Oil & Refining Co. v. Sun Oil Company, 13312.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 20 juin 1951
    ...was filed, it was above mean high tide, and was joined to and part of the upland. In Humble Oil and Refining Co. v. Sun Oil Co., 5 Cir., 175 F.2d 670, this court reversed an order restraining defendants from interfering with a ground survey of certain lands owned by the two individual defen......
  • Humble Oil & Refining Company v. Harang, 66-697.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • 19 décembre 1966
    ...of or in aid of discovery under Rule 34." This observation is based upon the decision in Humble Oil & Refining Company v. Sun Oil Company, 175 F.2d 670 (5th Cir. 1949). While that case involved an injunction sought to prevent interference with the inspection of premises, the Court found tha......
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