Centorp Corp. v. Gulf Production Corp.
| Decision Date | 04 October 1938 |
| Docket Number | 27688. |
| Citation | 83 P.2d 181,183 Okla. 436,1938 OK 473 |
| Parties | CENTORP CORPORATION v. GULF PRODUCTION CORPORATION et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. An order which strikes a cross-petition of a defendant in an action to foreclose a materialman's or laborer's lien on an oil and gas leasehold, without prejudice to prosecute his claim in a separate action, is a final order from which an appeal would lie where such order precluded such defendant from proceeding further on the cross-petition in the same action.
2. Where no appeal is taken from an order such as is mentioned in paragraph 1 hereof, and the final judgment of which such order is a part requires the surplus, if any remaining after satisfying the judgment and lien for which the leasehold is ordered sold, to be paid to the clerk of the court to await the further order of the court, and the defendant whose cross-petition has been so stricken has in good faith sought and obtained leave to again enter the case to reach such surplus, and finally fails otherwise than upon the merits of his cross-petition is entitled to commence a new action under Section 106, O.S.1931, 12 Okl.St.Ann. § 100, within one year after the judgment denying his right to re-enter the original case becomes final.
Appeal from District Court, Oklahoma County; George H. Giddings Jr., Judge.
Action by Black, Sivalls & Bryson against the Gulf Production Corporation, the Centorp Corporation, and others to foreclose a lien, wherein the Centorp Corporation filed a cross-petition claiming a lien for operating expenses. The cross-petition of the Centorp Corporation was stricken from the files and it was given leave to file proper application for distribubution of surplus money in the hands of the sheriff. From a judgment sustaining the motion to strike the application of the Centorp Corporation, the Centorp Corporation appeals.
Judgment reversed, and cause remanded for further proceedings.
Gibson & Holleman, of Tulsa, for plaintiff in error.
Arthur H. Dolman and Roger L. Stephens, both of Oklahoma City, for defendants in error.
This is an appeal from an order denying an application for distribution of a surplus arising out of a sale of an oil and gas mining leasehold in the foreclosure of labor and materialmen's liens on the oil and gas lease.
The action was commenced by Black, Sivalls & Bryson, a corporation, against Gulf Production Corporation, Halliburton Oil Well Cementing Company, Centorp Corporation and some eighteen others were made parties defendant.
For convenience Black, Sivalls & Bryson will be referred to herein as plaintiff, Gulf Production Corporation as Gulf Halliburton Oil Well Cementing Company as Halliburton, and Centorp Corporation as Centorp.
Gulf was the owner of the oil and gas mining lease. It entered into a written contract with one Pratt, the predecessor in interest of Centorp, wherein said party was to and did furnish three strings of casing for a well to be drilled on said premises, in consideration thereof Gulf agreed to and did assign to Pratt, an undivided one-fourth interest in the leasehold. At the same time and as a part of the same transaction Gulf agreed to drill and complete a well on the leased premises at its own expense and free from cost to Pratt. It also agreed that after the completion of the well it would be turned over to Pratt in good order for operation for the benefit of all the interested parties, Pratt was to keep accurate account of the expenses of operation and render statements monthly, payment to be made within ten days after rendition. The contract specifically provided that Pratt was to have a lien on all the three-fourths interest of Gulf to recover payment of its part of the expenses, and that Pratt's part of the expenses of operation should not exceed 5/32 of the total expense. The contract was in writing and it and the assignment of a one-fourth interest in the lease were recorded in the office of the County Clerk. Pratt assigned to Centorp. Thereafter Gulf assigned portions of its remaining three-fourths interest to other parties who were made defendants. Plaintiff furnished certain tanks separators, material, equipment, walkway and stairway and labor for the well under a contract with Gulf. Plaintiff was not paid and it filed its lien statement, and later commenced this action to foreclose its lien, wherein it alleged that defendant owners of the leasehold were mining partners in the enterprise. Halliburton was made a party defendant, and it filed an answer and cross-petition setting up a claim of $600, for cementing the well, and asserted a lien to secure same.
Centorp answered specifically denying that it was a mining partner with Gulf and the other defendant owners, but asserted its interest under the contract and assignment and agreement of Gulf to drill and equip the well, and prayed for judgment holding its interest not liable for the lien, but in the alternative should it be held liable, that the three-fourths interest of Gulf and its subsequent assignees be first sold to satisfy said liens. Later Centorp filed a cross-petition wherein it claimed a lien for operating expenses, and pleaded its contract for such a lien.
A. F. Spengler Company filed an answer setting up a claim for a "high pressure hookup" alleged to have been furnished by it to Gulf under a contract to pay therefor the sum of $10,000, out of 1/16 of the oil produced and saved from said leasehold.
Issues were joined on the cross-petition of Centorp and other claimants. The cause went to trial on December 27, 1933, and after plaintiff had put on its evidence and while Halliburton was putting on its evidence, Gulf appears to have moved the court to strike from the files the cross-petition of Centorp and the cross-petitions and pleas of all defendants other than Halliburton.
This motion was sustained and judgment was entered on February 6, 1934, in favor of plaintiff and against Gulf for the sum of $9,630.19, including interest and attorneys fee and sustaining its lien, and in favor of Halliburton and against Gulf in the sum of $733.40, including interest and attorneys fee, sustaining its lien and ordering the entire leasehold sold to satisfy said judgments and liens. The judgment, however, provided that the three-fourths interest in said leasehold be offered for sale first, and sold if an amount was bid therefor sufficient to satisfy the judgment, costs, etc., but if a sum sufficient therefor was not bid, then the entire leasehold should be offered for sale and sold.
The journal entry of judgment dated February 6, 1934, included the order striking from the files the cross-petition of Centorp, and the cross-petition of other defendants. The order provided, however, that it is "without prejudice to the rights of the parties to litigate all or any of said matters stated in said cross-petitions or either of them in a separate action or in separate actions".
No appeal was taken from said judgment or any part thereof. Later sale was had of the three-fourths interest other than that of Centorp. This sale was for $13,100, which was something more than $2,200, over and above the amount of the judgments, interest, costs, etc., leaving a surplus in the hands of the sheriff of about said amount.
The judgment directed the proceeds to be applied first, to the payment of all costs of the action, second, to the payment of said judgments, and third, balance, if any, "to be paid to the Clerk of this Court to await the further orders of the court or the judge thereof".
After the sale and while this surplus was still in the hands of the sheriff, Centorp filed in this same case, a motion, which after reciting all the proceedings theretofore had, in effect asked the court to vacate and set aside its former order striking Centorp's cross-petition from the files, and requesting a hearing on its said cross-petition, and an adjudication of its claim for reimbursement for operating expenses paid by it and its right to a lien under its contract. This motion was sustained. The order sustaining same,...
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