Billy v. Le Flore Cnty. Gas & Elec. Co.
| Decision Date | 30 September 1930 |
| Docket Number | Case Number: 20288 |
| Citation | 146 Okla. 227,293 P. 1009,1930 OK 430 |
| Parties | BILLY et al. v. LE FLORE COUNTY GAS & ELECTRIC CO. |
| Court | Oklahoma Supreme Court |
¶0 1. Judgment--Conclusiveness -- Issues not Subject to Retrial in Collateral Action.
Where a court having jurisdiction of a case has pronounced a decree upon a certain issue, such issue cannot be retried in a collateral action. The binding effect of a judgment when sued on in a distinct and collateral action between the same parties is conclusive.
2. Courts--Appeal and Error--Trial Court's Continuing Jurisdiction Where Party Fails to Perfect Appeal from Order Overruling Demurrer.
Where the court overrules plaintiffs' demurrer to defendant's answer and the plaintiffs give notice of their intention to appeal thereon to the Supreme Court, but fail to perfect their appeal, the trial court is not divested of jurisdiction, but may proceed in the action as if no notice of appeal had been given.
3. Judgment--Oil and Gas--Right of Action for Accounting for Gas Produced, Based on Final Judgment Canceling Lease, not Affected by Subsequent Controlling Decisions Holding Similar Leases Valid.
An action brought for accounting for gas taken from certain premises pursuant to a final judgment entered in another cause between the same parties declaring the purported lease under which the defendant was operating for oil and gas on the premises to be void, does not disclose on its face that plaintiffs' claim is without equity even though subsequent controlling decisions in this jurisdiction established rules of law under which the decree declaring the oil and gas lease to be void would not have been sustained.
4. Judgment -- Conclusiveness -- Right to Sue on Matters Expressly Reserved.
"A judgment or decree which expressly excepts or reserves from its operation specified rights or claims of the parties in suit, or the decision of questions in issue, or the right to take further proceedings in respect to certain matters, is not a bar to a subsequent action on the matters so reserved; but on the contrary the reservation itself becomes res adjudicata and prevents the raising of any questions as to the right to bring or maintain such subsequent suit." 34 C. J. 797.
5. Pleading--Judgment on Pleadings Improper Where Issue Made on Question of Fact.
It is error to sustain a motion for judgment on the pleadings when there is an issue on a question of fact made thereby. Held, under the pleadings in the instant cause, an issue of fact was made by the pleadings.
Commissioners' Opinion, Division No. 2.
Appeal from District Court, LeFlore County; D. C. McCurtain, Judge.
Action by Albert Billy and Dora Billy against LeFlore County Gas & Electric Company to obtain an accounting for gas it had wrongfully taken from their premises. Judgment for defendant. Plaintiffs appeal. Reversed.
J. T. Johnson, LaFayette Walker, and Geo. S. Evans, for plaintiff in error.
Rowland & Talbott and T. T. Varner, for defendant in error.
¶1 Albert Billy is one-half blood Choctaw citizen, enrolled opposite roll No. 6799. Certain lands were allotted to him as his homestead allotment. He and his wife, Dora Billy, resided on said premises as their homestead from July 5, 1907, and were residing there at the time this suit was filed. In 1912, Albert Billy made an oil and gas lease on said premises to the Nodak Oil Company, which lease was approved by the Secretary of the Interior. His restrictions were removed October 7, 1919. The LeFlore County Gas & Electric Company, through mesne assignments, became the owner of the lease. In March, 1914, it commenced operations on said premises and for many years produced gas therefrom. In 1922, Albert Billy and Dora Billy, his wife, in cause No. 3629, in the district court of LeFlore county, brought suit to cancel said lease on ground that it was their homestead and the lease was not executed by Dora Billy, spouse of Albert Billy. On April 16, 1923, judgment was entered in that cause canceling the lease. The defendant appealed the cause to this court as cause No. 14782, but thereafter dismissed its appeal. On January 15, 1924, Albert Billy and Dora Billy brought this suit against LeFlore County Gas & Electric Company on the judgment entered in cause 3629 for an accounting and to recover for the gas taken from said premises. The defendant by answer set up that subsequent to their dismissal of their appeal of cause No. 3629, the Supreme Court of the United States, in Sperry Oil & Gas Company v. Chisholm, 264 U.S. 488, 68 L. Ed. 803, 44 S. Ct. 372, rendered on April 7, 1924, decided that an oil and gas lease contract on restricted lands of an Indian citizen and allottee, in which the spouse failed to join, when approved by the Secretary of the Inferior, is a valid lease notwithstanding the Constitution and statutes of the state of Oklahoma to the contrary; that this decision is binding on the courts of the state of Oklahoma, and by reason thereof the plaintiffs acquired no rights under said judgment and that this judgment in cause No. 3629, so rendered, is not a basis for an action by the plaintiffs against the defendant to recover the value of the gas taken under the terms and conditions of the lease contract, which was a valid lease contract notwithstanding the decision of the trial court to the contrary; that said petition on its face showed that it was without equity; that in cause 3629, which was an equitable proceeding, the court had jurisdiction to settle all the rights and liabilities as between the parties, and having failed to decree an accounting therein, the judgment therein was res adjudicata of an accounting and estopped the plaintiffs from again litigating that question; and alleged further defenses which it is not necessary for us to consider herein. The plaintiffs filed a reply in the nature of a general denial thereto. Defendant's motion for judgment on the pleadings and record of the cause was sustained. Plaintiffs' motion for new trial was overruled and they bring this appeal.
¶2 The determinative question here presented is whether or not under the pleadings there was any issue of fact to be tried. If there were an issue of fact made by the pleadings, it was error for the trial court to sustain defendant's motion for judgment. Peck v. First Nat. Bank of Claremore, 50 Okla. 252, 150 P. 1039; Mires v. Hogan, 79 Okla. 233, 192 P. 811; Noland v. Owens, 13 Okla. 408, 74 P. 954; Cobb v. Wm. Kenefick Co., 23 Okla. 440, 100 P. 545; Deming Inv. Co. v. Reed, 72 Okla. 112, 179 P. 35; Hurie v. Quigg, 121 Okla. 80, 247 P. 677.
¶3 We will give consideration to each contention made by the defendant to sustain this judgment. It first contends that the trial court overruled a demurrer filed by the plaintiffs to its answer; that the plaintiffs elected to stand on said demurrer, gave notice of their intention to appeal to the Supreme Court thereon, made supersedeas bond therefor; that they failed to perfect their appeal, and that the order entered on said demurrer made a final determination of the cause, so the trial court was without jurisdiction to proceed further therein other than to enter judgment for the defendant, it having by its order on the demurrer adjudicated finally that a good defense had been pleaded, which facts were admitted by the demurrer.
¶4 With this contention we do not agree. The trial court did not lose jurisdiction of this proceeding when the plaintiffs elected to stand on their demurrer to defendant's answer and gave notice of intention to appeal thereon to this court. The appellate court does not obtain jurisdiction of the cause until an appeal is perfected. The order made on the demurrer was merely interlocutory and the determination made thereon was not final and binding on the court making it, but could be reviewed and changed by the court at any stage of the proceeding prior to the final judgment in the cause. Wells v. Shriver, 81 Okla. 108, 197 P. 460; 10 R. C. L. 599, et seq.; Hebblethwaite v. Flint, 83 A.D. 163, 82 N.Y.S. 471; Pickens v. Daniels (W. Va.) 58 W. Va. 327, 52 S.E. 215; Brannon v. Wilson (Tex. Civ. App.) 260 S.W. 201.
¶5 Subsequent to the ruling on that demurrer the plaintiffs filed a reply and an amended reply. The trial court did not give permission to file these pleadings out of time, but it thereafter refused to strike the same on the motion of the defendant, which is tantamount to granting permission to file them.
¶6 The defendant next contends that if the judgment entered in cause No. 3629 is a final judgment and not an interlocutory decree, the plaintiffs may not relitigate any question or issue which might have been tried therein; that it was such a proceeding as would permit, not only the determination as to the validity of the lease under which defendant was operating, but also the determination of the liability of this defendant, if any, to the plaintiffs for the gas taken from the premises. It would have been proper for the plaintiffs in that action to have joined with their action to quiet title and to cancel the lease an action for accounting and thus determine all the ultimate rights and liabilities between these parties. Probst v. Bearman, 76 Okla. 71, 183 P. 886; Murray v. Speed, 54 Okla. 31, 153 P. 181; Depuy v. Selby, 76 Okla. 307, 185 P. 107. The petition in that cause prayed for a judgment quieting title to the premises in the plaintiffs, for the cancellation of the purported lease under which defendant was operating, and for general relief. We do not assume to pass upon the allegations of that petition to determine whether or not the court could have thereunder ordered an accounting between the parties, for the trial court specifically excluded from its determination that issue, as recited in the journal entry of judgment in the following language:
"And the court does not now determine the rentals for said real estate or determine the value of the oil and gas taken from said lands,...
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