Boger v. Moore
| Decision Date | 27 June 1946 |
| Docket Number | No. 4384.,No. 4378.,No. 4383.,4378.,4383.,4384. |
| Citation | 196 S.W.2d 646 |
| Parties | BOGER v. MOORE, Inc. |
| Court | Texas Court of Appeals |
Appeal from District Court, Newton County; F. P. Adams, Judge.
Suit by Moore, Incorporated, against A. E. Boger for an accounting in relation to written contract to drill an oil well, appointment of a receiver and cancellation of assignment of interests in oil and gas leases. From an order continuing in effect a temporary receivership and fixing time for hearing on application for receivership, from order overruling defendant's plea of privilege, and from order appointing a receiver, defendant appeals and the appeals were consolidated.
Judgments and orders affirmed.
O'Fiel & O'Fiel, of Beaumont, for appellant.
Forse & Forse, of Newton, and Cooper K. Ragan, of Houston, for appellee.
Moore, Inc., is a Georgia corporation with a permit to do business in Texas. It is the owner of oil and gas leases on approximately 10,000 acres of land in East Texas, mostly in Newton county. It made a contract with A. E. Boger, the appellant, to drill an oil well on a certain tract of such land. Boger was obligated to provide an oil well drilling rig and drill a well, and appellee, Moore, Inc., was obligated to provide the money for the expenses of drilling. Boger procured the rig and did drill the well to a depth of about 9,400 feet. Moore, Inc., provided funds to the extent of approximately $100,000. On February 20, 1946, Boger advised Moore, Inc., that an additional $4,000 was needed for testing and "shooting" the well as it was about ready to be brought in as a producing well. Mr. W. L. Moore, an officer and agent of the appellee, instructed Boger to draw a draft on him for the $4,000, which was done. Mr. Moore then came to Newton county, the scene of the drilling operation, and was advised by Boger that another $12,000 was necessary before he could go ahead with the testing and drilling operations. Mr. Moore requested a statement from Boger showing the manner in which the funds already paid by Moore, Inc., had been expended, with receipted invoices accompanying such statement. When this was not forthcoming, the parties disagreed and each one set out to what seems to have been a race to see who could initiate litigation first. Mr. Boger filed his suit in the United States District Court, for the Eastern District of Texas, alleging that Moore, Inc., was indebted to him and praying for restraining order, temporary injunction, and for receivership. The judge of the United States District Court granted a temporary restraining order, restraining Moore, Inc., from interfering with Boger in the drilling operations. A few days later on a hearing he denied the application for a receivership and for a temporary injunction, and dissolved the restraining order theretofore issued. The main suit in such cause is still pending in the United States District Court. On the same day Moore, Inc., filed suit in the district court of Newton county, Texas, alleging the drilling contract above referred to with Boger, alleged that Boger was indebted to it in the sum of $35,000, that Boger had breached his contract and prayed for an accounting and judgment for its debt, for cancellation of its contract in so far as it assigned to Boger an interest in certain mineral oil and gas leases on land in Newton county, Texas, and prayed for an appointment of a receiver to take charge of and complete such well on the ground that it had reached such stage that its value as a well would be destroyed unless it were cared for and completed. The judge of the district court of Newton county appointed a receiver of the well and property, who qualified by taking the oath and posting the bond required by the court. Such appointment of the receiver without notice was vacated by judgment of this court on the ground that the appointment of a receiver was made to take possession of fixed and immovable property without notice to the interested parties, in violation of Rule 695, Texas Rules of Civil Procedure. On March 11, 1946, the district court of Newton county entered an order continuing in effect the temporary receivership theretofore made and ordering that a hearing be had on the application for receivership on March 18, 1946, and ordered constructive service on Boger for said hearing. Appellant Boger appealed from such order of March 11, 1946, and it is No. 4378 on the docket of this court.
Appellant Boger appeared for the hearing on the application for receivership March 18, 1946. He filed his plea of privilege to be sued in Jefferson county, Texas, the county of his residence, and appellee, Moore, Inc., filed a controverting affidavit, alleging that the suit was brought on a written contract to drill an oil well in Newton county, Texas, and that under subdivision 5 of Art. 1995, Revised Statutes 1925, Vernon's Ann.Civ.St. art. 1995, subd. 5, the suit was properly brought and should be tried in Newton county; it also alleged that the suit was for cancellation of assignments of mineral leases on land situated in Newton County, Texas, and to remove cloud from title to such land, and that under subdivision 14 of such statute the suit was properly brought and should be tried in Newton county. On a hearing, the court overruled the plea of privilege and Boger has appealed from such order overruling his plea, and that appeal is No. 4383 on the docket of this court. Appellant Boger also filed his plea in abatement, alleging that the same controversy between the same parties was involved in his suit then pending in the United States District Court, and alleged that the instant suit should be abated because of the pendency of prior litigation in that court. He also filed a lengthy pleading to the merits of the application for receivership, denying that any grounds for the appointment of a receiver existed. On the hearing on the application for appointment of receiver, the judge of the district court of Newton county found, after hearing the testimony, that the appointment of a receiver was authorized and appointed a receiver to take possession of the leasehold premises, and all property situated thereon. Boger has appealed from such order appointing a receiver and that cause is No. 4384 on the docket of this court. All three appeals have been consolidated.
The appellant by his first point says the court erred in refusing to...
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