Duncan v. Glasscock, 12689.

• Decision Date: 21 May 1938
• Docket Number: No. 12689.,12689.
• Citation: 118 S.W.2d 658
• Parties: DUNCAN v. GLASSCOCK.
• Court: Texas Court of Appeals

118 S.W.2d 658

DUNCAN v. GLASSCOCK.

No. 12689.

Court of Civil Appeals of Texas. Dallas.

May 21, 1938.

Rehearing Denied July 2, 1938.

Appeal from District Court, Dallas County; Dick Dickson, Judge.

Suit by Lonnie Glasscock against Blanche A. Duncan for appointment of a receiver to take charge of and manage a certain oil and gas leasehold until it could be partitioned. From an order of the court setting aside an order changing the venue, defendant appeals.

Affirmed.

Roy W. McDonald and Herbert S. Bonney, Jr., both of Dallas, for appellant.

Webster Atwell, of Dallas, for appellee.

LOONEY, Justice.

The events producing the present controversy, stated in chronological order, are these: On June 10, 1932, Lonnie Glasscock filed suit in the court below against T. H. P. Duncan, resident of Tarrant County, Texas, alleging in substance that the defendant, who was owner of a commercial oil and gas lease covering a 6/8ths interest in the oil and gas rights in and under a tract of 20 acres of land, situated in Gregg County, Texas (described by metes and bounds), sold and conveyed in writing to the plaintiff and various other persons (whose names and places of residence were unknown to plaintiff) undivided interests in and to said leasehold, reserving to himself a 1/8 interest in each interest conveyed; that said leasehold was owned by plaintiff and the defendant and others holding under him; that in said conveyances defendant reserved to himself the right to control, manage and operate the leasehold; alleging certain acts of mismanagement by the defendant and the existence of certain conditions that were detrimental to the property, threatening its value—in other words, alleged grounds for the appointment of a receiver, with authority to take charge of and manage the property until it could be partitioned, praying for such relief.

Defendant Duncan filed an answer, opposing the appointment of a receiver, but on hearing (June 11, 1932) the court made an appointment, the receiver qualified, assumed the duties of the position and, under the orders of court, operated the leasehold, drilled two additional wells, one having theretofore been drilled by the defendant. The defendant, also in answer to the merits, filed a general demurrer and general denial. A number of the co-tenants intervened and set up their respective claims. The case remained on the docket, without further development (so far as disclosed), the receiver being in charge, operating the property when, on September 21, 1937, plaintiff filed an amended petition, stating in detail the names and the places of residence of each of the co-tenants (44 in number), several of whom were alleged to be residents of Dallas County; also alleged the share owned or claimed by each; alleging the death of the defendant, and that Mrs. Blanche A. Duncan, whose residence was alleged to be unknown, was sole heir to defendant's estate; alleged that the receivership having continued for more than three years, no reason existed why it should longer continue, praying that the interest of each co-tenant be established by decree of court, that the property be partitioned accordingly and, if deemed necessary, that it be ordered sold and the proceeds partitioned, etc.

Mrs. Blanche A. Duncan, appellant, was cited by publication, but appeared, and on October 25, 1937, filed a pleading styled a "plea of privilege", alleging therein that her residence was in the State of California; that the purpose of the suit was to quiet title to and remove encumbrances from land, and that, within the meaning of subdivision 14 of Art. 1995, the District Court of Gregg County (the county in which the land was situated), had exclusive venue to try the suit; that no exception to the exclusive venue in the county where the land was situated existed, wherefore, she prayed that the venue of the cause be changed to Gregg County. This plea not being controverted under the provisions of Art. 2007, on December 3rd, 1937, the court sustained same and changed the venue of the case (receivership and all) to the District Court of Gregg County. On December 8, 1937, appellee filed a motion to set aside the order sustaining the plea and changing the venue, alleging therein that the court had theretofore acquired jurisdiction of the properties involved and the parties at interest, and that the question of venue had become settled; that the interest of appellant, if any existed, was not such as to justify the court in sustaining her plea; that the same, in law, was a nullity and of a nature not requiring or demanding the filing of a controverting plea; that prior to the entry of the order sustaining the plea and changing the venue, no hearing was set, nor had appellee been given notice that the plea was to be heard and acted upon prior to the time the same was taken up; that the trial court was not advised that the matter involved a receivership that had been pending for several years, nor that the interests of various and sundry other persons were involved; that having no notice of the hearing, appellee was precluded from controverting same, and showing, both by reason of law and of fact, that the same should be overruled. This motion was submitted to and heard by the court on December 17, 1937 and, after argument, was taken under advisement, but because of other pressing...