Carroll v. Roger Lacy, Inc., 195

• Decision Date: 31 March 1966
• Docket Number: No. 195,195
• Citation: 402 S.W.2d 307
• Parties: James T. CARROLL ex ux., Appellants, v. ROGER LACY, INC., et al., Appellees. . Tyler
• Court: Texas Court of Appeals

Page 307

402 S.W.2d 307

James T. CARROLL ex ux., Appellants, v. ROGER LACY, INC., et al., Appellees.

No. 195.

Court of Civil Appeals of Texas.

Tyler.

March 31, 1966.

Rehearin Denied April 28, 1966.

Welby K. Parish, Lowell C. Holt, Gilmer, for appellants.

J. T. Harris, Longview, F. L. Garrison, Gilmer, for appellees.

DUNAGAN, Chief Justice.

This suit was instituted in the trial court by James T. Carroll, Jr. and wife, Naomi Carroll, against the appellees to declare a lease held by the appellees, R. Lacy, Inc. and J. W. Griffith, to be terminated and prayed for judgment to remove cloud from title on their property and that they have judgment against the appellees, jointly and severally, for the recovery of title to an undivided one-fourth (1/4th) of the oil, gas and other minerals in and under the 94.88 acre tract of land in controversy.

The appellants further alleged in their third original amended petition:

'That subsequent to Plaintiffs' notification to Defendant, R. Lacy, Inc., that said oil, gas, and mineral lease had terminated, said R. Lacy, Inc., its agents, servants and employees, during the month of April, 1962, over the protests of Plaintiffs, maliciously, and without any legal right or authority, and with full knowledge that it had no legal right or authority, entered upon said land and began to drill and did drill on oil well on said land; that R. Lacy & Company, Inc., also in 1962 and during the month of May, over the protests of Plaintiffs, started to drill and did drill another oil well on said land.

'That R. Lacy, Inc., in so drilling said wells, destroyed a great deal of grass and turf on the land of said Plaintiffs, and further, in the process of drilling said wells, pumped the water used for the drilling thereof from a pond used by Plaintiffs in the watering of cattle which they were pasturing on said land, and said pond was pumped completely dry. Further, Defendant, R. Lacy, Inc., its agents, servants and employees, during the drilling of said wells, left open Plaintiffs' pasture gates, tore down the fences belonging to the Plaintiffs, and allowed the cattle owned by the Plaintiffs to get out of said pasture, and Plaintiffs, at their own expense, were required to round up said cattle, put them back in the pasture, repair said fences and gates, all of which expense Plaintiffs would not have had except for the wrongful act of R. Lacy, Inc., its agents, servants and employees, all to the plaintiffs' damages in the amount of SEVEN THOUSAND ($7,000) DOLLARS .

'That since the malicious, unlawful and illegal drilling of the said two oil wells on Plaintiffs' land, R. Lacy, Inc., and its assigns have wrongfully extracted oil, gas, and minerals from said lands, and have converted same to their own use and benefit to the value of approximately ONE HUNDRED THOUSAND ($100,000) DOLLARS. * * *'

The appellants, plaintiffs in the court below, sought judgment against the appellees, jointly and severally, for the total sum of $107,000.00.

This case was tried before the court without the aid of a jury.

The court rendered judgment for the appellees, finding that the oil, gas and mineral lease dated November 6, 1953, from O. H. Smith and wife, Beucie Smith, lessors, to Sol Simon, lessee, was in full force and effect and is now owned by R. Lacy, Inc. and J. W. Griffith, jointly, but found that damage in the sum of $450.00 had been done to the surface of said land by the operation of drilling of oil wells thereon and the production and marketing of oil therefrom and rendered judgment in that amount to appellants. The judgment further ordered that the appellants take nothing by their suit to cancel the oil, gas and mineral lease involved; and it further ordered that the appellants have and recover of and from the defendant, Lyons Petroleum Company, as operator of the leasehold estate in said land, the sum of $450.00 on account of damage done to said land and the fences, grass and timber thereon.

Findings of fact and conclusions of law were prepared and filed by the trial court at the request of appellants and none of those findings of fact were challenged by appellants, nor did they request any other or further findings.

Appellees, R. Lacy, Inc. and Lyons Petroleum Company, at the outset in their brief, contend that this appeal should not be further considered by this court because: "Roger Lacy, Inc.' was named as a defendant in Appellants' original petition herein, but after answers had been filed stating that there was no such corporation in existence but that there was a corporation named 'R. Lacy, Inc.', Appellants, in their Third Amended Petition, named 'R. Lacy, Inc.' as a defendant, omitting 'Roger Lacy, Inc.', thereby dismissing 'Roger Lacy, Inc.' from the suit. Yet, the instrument denominated an 'Appeal Bond' names only 'Roger Lacy, Inc.' as payee therein, and, therefore, it amounts not to a bond in this case, since it fails to name any defendant as payee therein and is not payable to the Clerk of the court or any other officer of the Court. Furthermore, said 'Appeal Bond' bears the signatures of Welby K. Parish and Lowell C. Holt as its only sureties, and since they are the attorneys for Appellants and no showing is made of prior approval by the trial court, their signatures as sureties are prohibited by the Texas Rules of Civil Procedure, Rule 142.'

These appellees have filed no motion in this court to strike the bond and dismiss the appeal because of these alleged defects, but have presented their objection in their brief filed in this court on February 7, 1966. The transcript in this cause was filed in this court on July 23, 1965. We overrule these objections. The bond, though defective, is in fact a bond and upon timely request may have been amended. Grogan Mfg. Co. v. Lane, 140 Tex. 507, 169 S.W.2d 141, 1943 (S.Ct.); Shanklin v. Rogers, 213 S.W.2d 730 (Tex.Civ.App.) 1948, n.w.h.

The failure to include the proper obligees in the bond is not jurisdictional. Speckels v. Kneip, 170 S.W.2d 255 (Tex.Civ.App.) 1942, writ refused, and Shanklin v. Rogers, supra.

Furthermore, it seems to be well settled when there are defects of substance or of form in an appeal bond, such defects are not jurisdictional and are waived by failure to present objections to the bond by motion within 30 days after the transcript is filed. Rules 404 and 430, T.R.C.P.; Conlee v. Burton, 188 S.W.2d 713 (Tex.Civ.App.) 1942, n.w.h.; Shanklin v. Rogers, supra; Pillow v. McLean, 126 Tex. 349, 88 S.W.2d 702, 1935. See also Neely v. Tarrant County, 132 Tex. 357, 124 S.W.2d 101, 1939; Pfeffer v. Meissner, 286 S.W.2d 241, 251 (Tex.Civ.App.) 1955, n.r.e.; Henslee v. State of Texas and County of Dallas, 375 S.W.2d 474 (Tex.Civ.App.) 1963, writ refused, n.r.e.

Even though an attorney of record is not permitted to sign appeal bond without the consent of trial court, nevertheless it has been held in this state where counsel for appellant signed appeal bond without special leave of court, in direct violation of this rule, but appellees made no objection to the appeal bond, and more than 30 days had passed, appellees could not gain anything by filing a motion to dismiss the appeal, in view of Rule 430 and 431, making liberal provisions for the correction of records on appeal, Morton v . Morton, 286 S.W.2d 702 (Tex.Civ.App.) 1955, n.w.h., and such error, if any, may have been waived. Wilkie v. Dean Lumber Co., 289 S.W.2d 402 (Tex.Civ.App.) 1956, writ refused, n.r.e.

ON THE MERITS

The appellants by their Point of Error No. 1 ¹ contend that the oil, gas and mineral lease had terminated as a matter of law.

The trial court found and the record shows that:

'Title to land described in plaintiffs' petition is not questioned in this action and the only title question involved herein is title to the leasehold estate in and to an undivided one-fourth of the oil, gas and other minerals in, under and that may be produced from said 96 1/2 acres of land, more or less.

'Title to the remaining undivided three-fourths of the oil, gas and other minerals in, under, upon and/or produced from said land was not attacked and it was agreed by plaintiffs that the oil, gas and mineral leases covering such undivided three-fourths of said minerals were in full force and effect.

'Title to the surface of the land described in plaintiffs' third amended petition and to an undivided one-fourth of the oil, gas and other minerals in, under, upon and produced from said land is vested in plaintiffs, subject to the vendor's lien and deed of trust lien securing note executed by plaintiffs for a part of the purchase price of said land which was purchased by plaintiffs from O. H. Smith and wife, Beucie Smith.'

The evidence shows that on November 6, 1953, O. H. Smith and wife, Beucie Smith, owned the surface of the above described land in fee simple and an undivided one-fourth interest in and to the oil, gas and other minerals on, in and under the same. On the above date, O. H. Smith and wife executed a lease covering the oil, gas and other minerals owned by them in and under the 94.88 acre tract of land in controversy for a period of ten years to Sol Simon, said lease being recorded in Volume 71, page 149 of the Oil, Gas and Lease Records of Upshur County, Texas.

The oil, gas and mineral lease above mentioned contained the following provision:

'If drilling operations are not commenced on said land on or before one year from the date hereof, this lease shall then terminate as to both parties, unless Lessee shall pay or tender to Lessor or to the credit of Lessor in First National Bank at Gilmer, (which bank is Lessor's agent) the sum of ($25.00) Twenty Five Dollars ($25.00) (hereinafter called 'rental'), which shall extend for twelve months the time within which drilling operations may be commenced. Thereafter annually, in like manner and upon the payments or tenders, the commencement of drilling operations may be further deferred for periods of twelve months...