Capital Oil & Gas Co. v. Casey

• Decision Date: 02 July 1927
• Docket Number: (No. 11838.)
• Citation: 299 S.W. 466
• Parties: CAPITAL OIL & GAS CO. v. CASEY.
• Court: Texas Court of Appeals

299 S.W. 466

CAPITAL OIL & GAS CO. v. CASEY.

(No. 11838.)

Court of Civil Appeals of Texas. Fort Worth.

July 2, 1927.

Rehearing Denied September 24, 1927.

Error from Tarrant County Court; H. O. Gossett, Judge.

Suit by G. E. Casey against the Capital Oil & Gas Company. Judgment for plaintiff, and defendant brings error. Reformed and affirmed.

Goggans & Allison, of Breckenridge, for plaintiff in error.

Stuart & Morgan, for defendant in error.

BUCK, J.

G. E. Casey filed suit in the county court at law No. 2 of Tarrant county against the Capital Oil & Gas Company, a private corporation, organized under the laws of the state of Texas, with its principal office and place of business in Fort Worth, Tarrant county, Tex. He alleged that he had been employed by the defendant during the month of July, 1925, to work for the defendant from month to month, said service to begin on August 20, 1925, and to continue from month to month until said service should be by both parties terminated, that under the contract, plaintiff was to serve and did serve as vice president and general manager of said company in the drilling of one certain oil well in Stephens county, and that he did work for the defendant in said capacity, from August 20th to November 15th, inclusive. He alleged that defendant had promised to pay him the sum of $350 per month, payable on the 20th day of each month, and that defendant had only paid him $350, and that he was entitled to and the defendant owed him $641.50. In addition to his suit for debt, he alleged as follows:

"The plaintiff did on the ____ day of ____, A. D. 1925, file a laborer's lien on all properties owned by said defendant company in Stephens county, Tex., in the Mechanic's Lien Records of Stephens county, Tex., vol. ___, p. ___, and the plaintiff now prays and asks for a foreclosure of said laborer's lien on the property owned and held by said company."

In his prayer he prayed for a foreclosure of his laborer's lien. Plaintiff was awarded judgment in the sum of $641.50, and given a foreclosure of a laborer's lien on certain described leases in Stephens county. From this judgment the defendant has appealed by writ of error.

Opinion.

Plaintiff in error, hereinafter called appellant, urges that the county court was without jurisdiction to try this cause, inasmuch as the plaintiff sought a foreclosure of a laborer's lien on certain oil and gas leases, which, as held by the Supreme Court, is an interest in land; that the district court alone has jurisdiction to foreclose this lien. Appellant cites a number of cases in support of its contention, such as Childress Oil Co. v. Wood, 233 S. W. 566, by this court, and Id., 111 Tex. 165, 230 S. W. 143, by the Supreme Court, on certified questions, R. O. Kipp Co. v. Anglin (Tex. Civ. App.) 270 S. W. 893, and Wilkerson v. Huddleston (Tex. Civ. App.) 258 S. W. 884.

Defendant in error, hereinafter called appellee, cites a number of cases in support of his contention that the mere mention in plaintiff's petition that he had filed "on the ____ day of ____, a laborer's lien" on all property owned by defendant company in Stephens county, etc., without describing said property, and without showing whether said property consisted of real estate or personal property, was not a sufficient allegation to justify the trial court in giving judgment for a foreclosure, and that said allegation must be treated as a surplusage and disregarded. We will briefly discuss the question involved, with the light shed thereon from the cited authorities and other authorities which we have examined.

In the Childress Oil Co. v. Wood case, supra, this court, speaking through Justice Dunklin, said:

"The only question presented to this court by the defendant, who has appealed from the last judgment, is that of jurisdiction to render it; the contention being that, as the value of the property upon which a lien was asserted was in excess of $200, the justice court had no jurisdiction of the suit, and therefore the county court on appeal had none. It is our conclusion that the assignment should be sustained. It is well settled by the decisions of our Supreme Court that in a suit to foreclose a lien on personal property the jurisdiction of the court in which the suit is instituted must be determined by the value of such property, and that, if the justice court in which a suit is instituted is without jurisdiction to entertain it, the county court acquires none when the case is appealed to that court for trial de novo" — citing cases.

In the Supreme Court, speaking through Chief Justice Phillips, it was said:

"The honorable Court of Civil Appeals reversed this judgment and directed the dismissal of the case, holding that the jurisdiction of the justice court has determined by the value of the property upon which the lien was asserted, and that, since the justice court had no jurisdiction, the county court had none. The question certified is whether its action was correct. We answer that it was."

The Supreme Court distinguishes that case from cases wherein a statutory lien is sought to be foreclosed, and the statute provides that so much of defendant's property shall be foreclosed as will satisfy the lien. Landlord's lien, carrier's lien, etc., are in this class.

In the second case cited, R. O. Kipp Co. v. Anglin, by the San Antonio Court of Civil Appeals, Justice Smith, after citing a number of cases, said:

"The holdings of the cases cited are unmistakable and overwhelming, and in deference to them we hold that in this case the jurisdiction of the court below was determinable by the value of the property against which the lien was sought to be enforced, and not by the amount sued for, although that amount was within the jurisdiction of the court."

In Wilkerson v. Huddleston, supra, opinion by Justice Lane of the Galveston Court of Civil Appeals, the cause originated in the justice court, and, upon appeal to the county court, upon objection that the value of the property upon which a foreclosure was...