Bercegeay v. Techeland Oil Corp.
| Decision Date | 05 November 1945 |
| Docket Number | 37898. |
| Citation | 24 So.2d 242,209 La. 33 |
| Court | Louisiana Supreme Court |
| Parties | BERCEGEAY et al. v. TECHELAND OIL CORPORATION et al. (TALBOT, Intervener). |
Rehearing Denied Dec. 10, 1945.
Appeal from Sixteenth Judicial District Court, Parish of St. Mary; James D. Simon, Judge.
Matthew A. Grace, of New Orleans, for intervener and appellant.
O'Niell & O'Niell, of New Orleans, for plaintiffs and appellees.
This is a suit to have declared null and void an oil and gas lease covering property situated in the Parish of St. Mary, State of Louisiana, for violation of certain provisions contained therein. Plaintiffs allege that defendants, after the discovery of oil, permitted the production thereof to cease for a period of 60 days without commencing additional drilling or reworking operations and failed to drill certing off-set wells.
Plaintiffs Lussan M. Bercegeay, Margaret Averill, H. Merlyn Christie, J M. Campbell, Mrs. Bessie Hertel, Bessie Belle Fairchild, H G. Hertel, C. A. Hertel, G. E. Hertel, and Mrs. Mary Louella Hertel Frick, as owners of the property covered by the lease, instituted this suit on August 22, 1942, in the Sixteenth Judicial District Court, Parish of St. Mary, against Techeland Oil Corporation in receivership and Knisely Oils, Inc., also in receivership, transferees of the oil and gas lease in question.
Both Techeland Oil Corporation and Knisely Oils, Inc., had been placed in receivership in the Parish of Orleans by a judgment of the Civil District Court of that Parish rendered on April 14, 1942, and Elton J. Beaullieu had been appointed receiver of both corporations.
On November 9, 1942, Techeland Oil Corporation, through its duly appointed and qualified receiver, filed an answer of general denial to plaintiffs' petition. No exception or answer was filed in this suit by Knisely Oils, Inc., in receivership.
The case was tried on the merits in the Sixteenth Judicial District Court, Parish of St. Mary, on June 8, 1943, and taken under advisement by that court.
On January 17, 1944, the Civil District Court for the Parish of Orleans, Division 'A,' the court in which the receivership proceedings were being conducted, by judgment rendered in these proceedings (No. 244,322 on the docket of that court) authorized the receiver to accept the offer of William H. Talbot to purchase the lease in question, together with other leases and miscellaneous personal property, for the sum of $1000. Pursuant thereto, the receiver conveyed the lease by act of sale dated February 14, 1944, to William H. Talbot.
On February 24, 1944, after this case had been tried on its merits and taken under advisement by the Sixteenth Judicial District Court, Parish of St. Mary, William H. Talbot filed a petition of intervention in that court, alleging, among other things, that he had purchased from said corporations in receivership, and was the owner of, the lease in question, and praying for judgment dismissing plaintiffs' suit at their costs.
To this petition of intervention plaintiffs excepted on the grounds that it came too late and would retard the progress of the case, and that it did not disclose a cause or right of action.
On March 5, 1945, the district court rendered judgment decreeing the lease to be null, void, and of no effect, and dismissing the petition of intervention of William H. Talbot. From this judgment the receiver of Techeland Oil Corporation and of Knisely Oils, Inc., and William H. Talbot appealed to this court, both suspensively and devolutively.
In brief and in argument before this court, it is contended that the judgment rendered in this cause by the Sixteenth Judicial District Court, Parish of St. Mary, is a nullity, for the reason that this suit should have been instituted in the receivership proceedings of the defendant corporations in the Parish of Orleans; or, to express it differently, that the Sixteenth Judicial District Court, Parish of St. Mary, was without jurisdiction.
Article 162 of the Code of Practice provides that it is the general rule in civil matters that one must be sued before the judge having jurisdiction over the place where he was his domicile or residence. But this general rule has certain exceptions, one of which is concerned with actions relative to real property.
Act 205 of 1938 classified oil, gas, and mineral leases as real rights and incorporeal, immovable property, and provided that their ownership and possession could be protected and defended in the same manner as the ownership and possession of other immovable property. The court of the parish where the property subject to the lease is situated also has jurisdiction in an action to cancel and annul such oil and gas lease, as this is a real right and covered by the provisions of Article 163 of the Code of Practice, which is an exception to the rule that one must be sued at his domicile. Payne v. Walmsley, La.App., 185 So. 88.
Under this exception to the general rule, the Court of St. Mary Parish had jurisdiction in this suit provided it had not been divested of jurisdiction, under Article 165, Subsection 3, of the Code of Practice, by the fact that the defendants, Techeland Oil Corporation and Knisely Oils, Inc., were in receivership in the Parish of Orleans, having gone into receivership prior to the institution of this suit. Article 165, Subsection 3, provides:
(Italics ours.)
An examination of Article 165 discloses that it contains 10 separate subsections, numbered one to 10, both inclusive, all being exceptions to the general rule that a defendant must be sued at his domicile. In some of the subsections the word 'shall' or 'must' is used with reference to jurisdiction, and in others a choice or jurisdiction is given. This leads us to the conclusion that, if no choice of jurisdiction is permitted, then the words in Subsection 3 'must be carried' are mandatory and mean that these proceedings 'must be carried' before the Civil District Court for the Parish of Orleans, the court in which the failure has been declared, and consequently that the District Court for the Parish of St. Mary was without jurisdiction in this matter.
In the case of Board of Missions v. Craighead Co., Ltd., et al., 130 La. 1076, 58 So. 888, 889, this court, after quoting Article 165, Subsection 3, said: 'The word 'failure,' as thus used, means declared insolvency.'
In that case, plaintiff had conveyed several tracts of land, situated in the Parish of St. Landry, to the Craighead Company for part cash and the balance on credit, the credit portion being represented by a note of the purchaser, secured by an act of mortgage on the property conveyed, containing the pactum de non alienando, imported confession of judgment, and the usual stipulations found in authentic acts of that character. The Craighead Company conveyed the tracts of land to the Port Barre Lumber Company, a corporation domiciled in the City of New Orleans, which corporation later went into the hands of a receiver by order of the Civil District Court for the Parish of Orleans.
Thereafter, plaintiff instituted suit in the Parish of St. Landry against the Craighead Company and the receiver of the Port Barre Lumber Company, to recover the amount of the note, with interest, attorney's fees, and costs, and to foreclose said mortgage and to have the vendor's privilege recognized on the tracts sold and conveyed. In this suit plaintiff also sued out a writ of sequestration, under which the land was seized. The Craighead Company made no defense, but the receiver of the Port Barre Lumber Company filed a motion to dissolve the writ of sequestration, alleging, among other grounds, that the property sought to be sequestered was in the hands of the Civil District Court for the Parish of Orleans, through its duly qualified receiver, and that therefore the district court of St. Landry Parish was without jurisdiction to sequester said property. The receiver filed also exceptions to the jurisdiction of the court ratione personae and ratione materiae.
The district court sustained the exception to the jurisdiction ratione personae but overruled the exception to the jurisdiction ratione materiae. The receiver, after reserving the benefit of his motion to dissolve and his exception to the jurisdiction ratione materiae, then answered, pleading the general issue. After trial the district court rendered judgment against the Craighead Company as prayed for recognizing plaintiff's special mortgage on the land in question, and perpetuating the writ of...
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