Chappell v. Jasper County Oil & Gas Co.

• Decision Date: 24 February 1903
• Docket Number: 4,603
• Citation: 66 N.E. 515,31 Ind.App. 170
• Court: Indiana Appellate Court
• Parties: CHAPPELL ET AL. v. JASPER COUNTY OIL & GAS COMPANY

66 N.E. 515

31 Ind.App. 170

CHAPPELL ET AL. v. JASPER COUNTY OIL & GAS COMPANY

No. 4,603

Court of Appeals of Indiana

February 24, 1903

Petition to retax costs granted May 21, 1903.

From Jasper Circuit Court; S. P. Thompson, Judge.

Suit for injunction by Jasper County Oil & Gas Company against Howard F. Chappell and others. From a judgment for plaintiff defendant Chappell appeals.

Reversed.

B. F Ferguson, J. E. Wilson and Marston & Tuttle, for appellant.

D. M. Shively, Frank Foltz, C. G. Spitler, H. R. Kurrie, J. S. Dailey, Abram Simmons and F. C. Dailey, for appellee.

OPINION

ROBINSON, J.

This case was transferred from the Supreme Court under the act of March 12, 1901.

The amended paragraph of complaint upon which the case was tried sought to enjoin appellant from boring and operating gas and oil wells on certain lands controlled by appellee. A trial by the court resulted in a decree granting a perpetual injunction against appellants upon the compliance by appellee with certain stipulated conditions.

A demurrer to the original complaint in one paragraph was sustained, and leave given to file an amended complaint. As no objection was made to the filing of the amended complaint, no error can be predicated upon the court's action in permitting it to be done.

As the second and third paragraphs of amended complaint were withdrawn before the trial, no harmful error was committed by the court in permitting them to be filed, or in refusing to strike them out on motion, or in overruling demurrers thereto. When a pleading is withdrawn, all rulings thereon pass out of the record with it.

There were four defendants in the court below, against all of whom the judgment and decree were rendered. Appellant Chappell alone has assigned error. Many of the exceptions to the court's rulings on the pleadings were taken by the "defendants." A separate assignment of error by one of several parties who were defendants below does not present any question upon a ruling to which all the defendants excepted jointly. Appellant Chappell separately demurred to each paragraph of the complaint, and all the defendants also demurred to the complaint, and the "defendants" reserved an exception to the ruling on the demurrers. The record does not show that appellant reserved any exception to the ruling on his separate demurrer. The sufficiency of the complaint is also questioned by an assignment of error.

In an application for an injunction, it is not necessary to aver that the plaintiff will suffer irreparable injury if the relief asked is not granted, but it is sufficient to aver that he will suffer great injury. It may be true in the case at bar that appellee had a remedy at law, but it was not "as practical and efficient to the ends of justice, and its prompt administration, as the remedy in equity." Watson v. Sutherland, 5 Wall. 74, 18 L.Ed. 580. In Pomeroy, Eq. Jurisp. (2d ed.), § 1357, it is said "that a remedy which prevents a threatened wrong is in its essential nature better than a remedy which permits the wrong to be done, and then attempts to pay for it by the pecuniary damages which a jury may assess." See Champ v. Kendrick, 130 Ind. 549, 30 N.E. 787; Bishop v. Moorman, 98 Ind. 1, 49 Am. Rep. 731; Erwin v. Fulk, 94 Ind. 235; Allen v. Winstandly, 135 Ind. 105, 34 N.E. 699; Xenia Real Estate Co. v. Macy, 147 Ind. 568, 47 N.E. 147; Hart v. Hildebrandt, 30 Ind.App. 415, 66 N.E. 173. The complaint, tested for the first time by an assignment of error, contains sufficient facts to bar another action. Xenia Real Estate Co. v. Macy, supra; Loeb v. Tinkler, 124 Ind. 331, 24 N.E. 235; Citizens' St. R. Co. v. Willoeby, 134 Ind. 563, 33 N.E. 627.

Many of the questions discussed by appellant's counsel are not presented, if, as insisted by appellee, the evidence is not in the record. The transcript discloses that appellant, by his counsel, filed with the clerk of the trial court a precipe as follows: "The Jasper County Oil & Gas Company v. Howard F. Chappell et al. The clerk of the Jasper Circuit Court will prepare and certify a full, true, and complete transcript of the proceedings, papers on file, and judgment in the above entitled cause, to be used on appeal to the Supreme Court of the State of Indiana." The transcript contains the original bill of exceptions, embracing the evidence given upon the trial. The precipe in the case at bar does not differ in any material respect from that in Chestnut v. Southern Ind. R. Co., 157 Ind. 509, 62 N.E. 32, where it is held that under such a precipe the original bill of exceptions, containing the evidence, and authenticated by the clerk, though embodied in the transcript, is not a part of the record, and can not be considered; the court saying: "Under the directions given to the clerk in the precipe in question it became his duty to certify to this court a transcript or copy of the original bill of exceptions containing the evidence and the rulings of the court in the admission or exclusion of testimony, and his act in certifying the original bill was, under the statute, unauthorized." In Johnson v. Johnson, 156 Ind. 592, 60 N.E. 451, the court said: "Only such papers and entries as are designated in said precipe are properly a part of the record on appeal. Said precipe did not direct or request the clerk to certify to this court said original bill of exceptions containing the evidence, in any manner. Under such conditions if said original bill of exceptions containing the evidence was embodied in the transcript, and properly authenticated, the same would not be a part of the record and could not be considered." See, also, Brown v. Armfield, 155 Ind. 150, 57 N.E. 722; McCaslin v. Advance Mfg. Co., 155 Ind. 298, 58 N.E. 67. Under these authorities, we must hold that the evidence is not before us.

The facts found by the court are that on August 1, 1899, Anna C Hershman leased to the Tri-State Oil Company certain lands, which company, on July 18, 1900, assigned the lease to one McDonald, who assigned the same July 28, 1900, to appellee. The lease and assignments were duly recorded. By this lease the lessor granted to the lessee all the oil and gas in and under the land described, and the right to enter upon the premises to drill for oil and gas, and erect and maintain necessary buildings, and lay necessary pipes for the transportation of gas and oil, reserving to the lessor the one-eight of all oil produced and saved, to be delivered in the pipe-line with which the lessee might connect its wells. If gas only was found in sufficient quantities to transport, the lessee agreed to pay the lessor $ 100 annually for the product of each well so transported; lessor to have free gas for dwelling-house. In case no well was completed within ninety days from date of lease, "then this grant shall become null and void unless second parties shall pay to the first party twenty-five cents per acre annual rental payable monthly for each month thereafter such completion is delayed;" the lessee to have the right to use sufficient gas or oil to run all machinery for drilling and operating wells, and "the right to remove all property at any time." In case the first well was a water well, the lessee was to leave the casing therein, free of cost to the lessor; it was further agreed that the lessee or assigns might, "at any time, by paying to said first party, his heirs and assigns, the sum of $ 1, and the said first party hereby agrees, for himself, his heirs or...