Cooper v. United Producers Co.
| Decision Date | 15 May 1936 |
| Docket Number | No. 13479.,13479. |
| Parties | COOPER et al. v. UNITED PRODUCERS CO. et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Wichita County; Irvin J. Vogel, Judge.
Suit by Mattie Cooper and another against the United Producers Company and another, wherein named defendant filed a cross-action against defendants and C. A. Cooper, and the Petroleum Producers Company filed a plea of intervention. From a judgment granting cross-plaintiff's application for a temporary writ of injunction restraining plaintiffs from further prosecuting another suit brought by them, plaintiffs appeal.
Affirmed.
Russel A. Bonham and Mary Nan Bonham, both of Houston, for appellants.
Kilgore & Rogers, of Wichita Falls, for appellees.
Mattie Cooper and Russell A. Bonham instituted two suits in the district court of Harris county to cancel an oil and gas lease on certain real estate in Duval county, Tex. In both of those suits it was alleged that the lease was procured by fraudulent misrepresentations of D. H. Rubsam, acting for himself and as the authorized agent of the United Producers Company, a corporation, in whose name the lease was executed. The first suit was filed on the 6th day of November, 1935. In that suit the United Producers Company and D. H. Rubsam were named as defendants, with allegations that Rubsam was a resident citizen of Wichita county, and that the United Producers Company had its principal office and place of business in that same county. Both of those defendants filed pleas of privilege to be sued in Wichita county, which pleas were duly sustained, on January 4, 1936, and the cause was ordered to be transferred to the district court of Wichita county. No appeal was taken from that order.
In accordance with that ruling, the record in the case was filed in the district court of Wichita county, on January 7, 1936. On January 8, 1936, the United Producers Company filed an answer in that suit and also a cross-action against the plaintiffs for judgment confirming title to the lease in accordance with its terms; and C. A. Cooper was also made a party defendant to the cross-action. On the same day and after the cross-action was filed, plaintiffs filed with the papers of the case an instrument in writing, addressed to the judge of that court, reading as follows: "Come now Mattie Cooper and Russell A. Bonham, plaintiffs in the above entitled cause, and dismiss their suit against the above named defendants without prejudice at plaintiffs' cost."
But there is no showing in the record that it was ever brought to the attention of the judge or acted upon by him.
The same suit was filed in the district court of Harris county on January 7, 1936.
On January 8, 1936, after the filing of the cross-action in the district court of Wichita county, the United Producers Company filed an application for a temporary writ of injunction restraining the plaintiffs from further prosecuting the second suit.
The assignments of error and propositions presented by appellants here are all based primarily upon the contention that the proceedings in the first suit and all orders entered therein were void because Mattie Cooper was then a married woman and was not joined in the suit by her husband, C. A. Cooper, a necessary party.
In the first suit, it was alleged that the land was purchased on the 2d day of October, 1928, while Mattie Cooper was the wife of C. A. Cooper, but the purchase price was paid out of her own separate means and therefore the land belonged to her separate estate; but there was no allegation in the petition as to whether or not he was still her husband at the time the suit was filed, or that he had refused to join her in the suit; nor was there any allegation from which any inference could be drawn that Mattie Cooper was then a feme sole.
In the second suit it was alleged by the plaintiffs that Mattie Cooper had been divorced from C. A. Cooper and that the land in controversy was her separate property, both by reason of the fact that her separate means had paid therefor and also by reason of the fact the title thereto had been awarded to her in the divorce decree. In the petitions in both those suits it was alleged that Russell A. Bonham owned an undivided interest in the land in controversy, which had been assigned to him as compensation for services rendered by him as attorney for Mattie Cooper.
In both suits it was alleged that when Mattie Cooper purchased the land in controversy title thereto was taken in the name of C. A. Cooper, and that the lease given to the United Producers Company was executed on the 24th day of June, 1935, by both C. A. Cooper and Mattie Cooper, and duly acknowledged by them as husband and wife.
In the second suit filed by the plaintiffs the following were named as defendants: United Producers Company, Reynosa Oil Company, Humble Oil & Refining Company, D. H. Rubsam, and C. A. Cooper, with allegations that the Reynosa Oil Company and the Humble Oil & Refining Company were wrongfully trespassing upon the property and that C. A. Cooper was made a party defendant by reason of having executed the oil and gas lease, and title to the land stood in his name.
After the first suit was filed in Wichita county upon a change of venue, the Petroleum Producers Company filed a plea of intervention in that suit on February 13, 1936, claiming an interest in the lease.
Appellants cite article 1983, Rev. Civ.Statutes of 1925, which provides that by authority of the law a wife may sue for the recovery of her separate estate in case her husband fails or neglects to do so. And numerous decisions are cited, to the effect that a husband is a necessary party plaintiff to a suit by the wife in the absence of allegations that he had neglected to file such suit in her behalf. The decisions cited in support of that proposition include Ortiz Oil Co. v. Railroad Commission (Tex.Civ.App.) 62 S.W.(2d) 376; Mitchell v. San Antonio Public Service Co. (Tex.Com.App.) 35 S.W.(2d) 140; Barmore v. Darragh (Tex.Civ.App.) 227 S.W. 522, and numerous other authorities cited in the opinion in that case; Nelson v. Thompson (Tex.Civ.App.) 64 S.W.(2d) 373; Langham v. Thomason, 5 Tex. 127. In practically all of those decisions it affirmatively appeared from the pleadings that the woman had a husband, and it was held that he was a necessary party plaintiff in the absence of an allegation giving her the legal capacity to bring the suit under the provisions of the statute referred to above; while in the suit first filed in the district court of Harris county there was an absence of such a showing.
We quote the following from the opinion of Justice Sharp, formerly of the Commission of Appeals and now Associate Justice of our Supreme Court, in the case of Cavers v. Sioux Oil & Refining Co. (Tex.Com.App.) 39 S.W.(2d) 862, 866:
The opinion of Chief Justice Cureton in Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, cited in the above case, contained a specific announcement to the same effect.
After the district court of Wichita county acquired jurisdiction of the first suit, Mattie Cooper could have amended her petition and brought in her husband, C. A. Cooper, as a party defendant, the same as was done in her second suit, and the court could have permitted amendments of defendants' pleadings also. We believe it clear that the district court of Wichita county thus acquired prior jurisdiction to determine the merits of plaintiffs' suit, and especially so since the same were necessarily involved in the cross-action, which was an independent suit within itself, making him a defendant also, and that the jurisdiction of that court having first attached, the district court of Harris county was without jurisdiction to determine the same issues in the second suit.
The opinion of Justice Smedley, of the Commission of Appeals, in Powers v. Temple Trust Co., 124 Tex. 440, 78 S.W.(2d) 951, 952, is cited in support of appellants' further contention that in the absence of resort to a plea in abatement of the second suit, appellees could not have injunctive relief against the prosecution of that suit.
It appears from that opinion that the second suit was filed and...
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Dearing v. Morgan, 13799.
...are well taken. Clifton v. Price, Tex.Civ.App., 88 S.W.2d 783; Price v. Lovejoy, Tex.Civ.App., 88 S.W.2d 785; Cooper v. United Producers Co., Tex.Civ. App., 95 S.W.2d 211; Watson Co. v. Cobb Grain Co., Tex.Com.App., 292 S.W. On the question of an attempt upon the part of the trial court to ......