Empire Gas & Fuel Co. v. Noble

• Decision Date: 04 March 1931
• Docket Number: No. 1426-5627.,1426-5627.
• Citation: Empire Gas & Fuel Co. v. Noble, 36 S.W.2d 451 (Tex. 1931)
• Parties: EMPIRE GAS & FUEL CO. v. NOBLE et al.
• Court: Texas Supreme Court

36 S.W.2d 451

EMPIRE GAS & FUEL CO. v. NOBLE et al.

No. 1426-5627.

Commission of Appeals of Texas, Section A.

March 4, 1931.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Action by the Empire Gas & Fuel Company against E. L. Noble and others. Judgment for plaintiff was reversed and rendered by the Court of Civil Appeals [20 S.W.(2d) 849], and plaintiff brings error.

Judgment of Court of Civil Appeals, affirmed.

C. C. Julien, of Bartlesville, Okl., and A. D. Dyess and Leon Jaworski, both of Houston, for plaintiff in error.

Maco Stewart, of Galveston, and A. J. De Lange, of Houston, for defendants in error.

SHARP, J.

For a partial statement of the nature and result of this case we adopt the clear and admirable statement made by Judge Walker in the opinion of the Court of Civil Appeals. The pleadings are voluminous, which makes the statement long, but it cannot be abbreviated. It is as follows:

"In the case of H. Taylor et al. v. Higgins Oil & Fuel Co. et al., on the docket of the district court of Liberty county, on the 18th day of August, 1924, appellants Lynd and Noble, defendants in that suit, recovered judgment against their codefendant, the appellee here, Empire Gas & Fuel Company, for the sum of $15,679.12, together with certain other relief set out in the judgment. That suit as instituted was an action in trespass to try title by H. Taylor and others against Houston Production Company and others, to recover a small tract of 1.27 acres of land off the east end of the 10-acre tract held under lease by the Houston Production Company. Immediately west of that tract was a tract of 5 acres owned by the appellants, who had leased it for oil development to appellee. Houston Production Company made the claimants of this 5 acres parties defendant, and in the event they lost to plaintiffs claimed the same amount off the east end of the 5-acre tract. Plaintiffs had brought in a producing oil well on the tract they were suing for, and the Empire Gas & Fuel Company, as lessees under appellants, had brought in a producing oil well on the small tract put in controversy by the action of the Houston Production Company against them. On similar pleas the owners of the tracts lying west of the 10-acre tract and the 5-acre tract were made parties defendant in that case. In the final judgment rendered therein on the 18th day of August, 1924, the plaintiffs lost to the Houston Production Company, and judgment was entered against them on the issue of title and also on the issue of improvements made in good faith.

"The Houston Production Company having recovered against the plaintiffs, it followed that they had no cause of action against Lynd and Noble and Empire Gas & Fuel Company on its cross-action, and that none of the other defendants had causes of action against their codefendants on their cross-actions. The judgment in favor of Lynd and Noble against Empire Gas & Fuel Company was in response to their plea asking for an accounting for the oil produced by it from the well on their lease. H. Taylor et al. appealed from the judgment against them to this court, where the judgment was in all things affirmed, except on the issue of improvements in good faith between them and Houston Production Company. On that issue the case was remanded for a new trial. The judgment of the trial court in that case was very lengthy, and by express recitations adjusted the claims of all the parties to all the land that had been brought in by cross-action. The plaintiffs, in appealing superseded the judgment of the trial court, and in affirming the judgment as between the plaintiffs and the Houston Production Company this court affirmed the judgment as rendered between all the other parties to the suit. Writ of error was denied by the Supreme Court against our judgment. Our opinion is reported in 2 S.W.(2d) 288, Taylor v. Higgins, to which we refer for a more particular statement of the claims of the various parties and the relative location of the several tracts of land put in controversy in that suit.

"After writ of error was denied, Lynd and Noble called upon Empire Gas & Fuel Company to pay their judgment against it. After continued negotiations, payment was refused. Lynd and Noble then sued out execution on their judgment, and this suit was brought by appellee, Empire Gas & Fuel Company, against appellants Lynd and Noble and their attorney, and the sheriff to whom execution had been delivered, praying that the judgment against it in favor of appellants be annulled and canceled, and that appellants be forever enjoined from enforcing it. By its preliminary allegations appellee pleaded in detail all the circumstances leading up to the judgment against it, which circumstances are reflected in our statement, as made supra."

The Court of Civil Appeals reversed the judgment of the trial court rendered in cause No. 6810 canceling and annulling the judgment rendered in favor of Lynd and Noble against the Empire Gas & Fuel Company, and held that the original judgment rendered in cause No. 5837 on the 18th day of August, 1924, is a valid judgment, and that same is not dormant. 20 S.W.(2d) 849. A writ of error was granted by the Supreme Court. The cross-bill filed by Lynd and Noble against the Empire Gas & Fuel Company is set out in the opinion of the Court of Civil Appeals, and we refer to same.

The Empire Gas & Fuel Company contend that the judgment rendered in cause No. 5837, supra, is void for the following reasons, to wit:

(1) No citation was ever issued or served against the Empire Gas & Fuel Company on the purported cross-action filed against it by Lynd and Noble, and no waiver of service was ever made by the company.

(2) That the district court of Liberty county is a court of record and any judgment rendered in said court must be supported by pleadings.

(3) That the judgment on said purported cross-action against the Empire Gas & Fuel Company was entered non obstante veredicto and the district courts of this state are without power to enter such judgment.

(4) That the purported judgment was wholly unsupported by the evidence.

(5) The judgment rendered in this cause on said purported cross-action was rendered on the 18th day of August, 1924, and was not appealed from by either the Empire Gas & Fuel Company or the said Lynd and Noble, and, no execution having been issued thereon within one year as provided for by law, said judgment was dormant.

The main question for decision in this case is: Was the judgment rendered in the district court of Liberty county in cause No. 5837 on August 18, 1924, in the case of H. Taylor et al. v. Higgins Oil & Fuel Co. et al., a valid and binding judgment as between Lynd and Noble and the Empire Gas & Fuel Company?

This record discloses that in cause No. 5837 plaintiffs filed their original petition therein on January 19, 1923; that the original answer of the Empire Gas & Fuel Company and Lynd and Noble was filed July 14, 1923; on March 3, 1924, attorneys for Lynd and Noble filed a cross-bill against their codefendant, the Empire Gas & Fuel Company; no citation on the cross-bill filed by Lynd and Noble was issued or served on the Empire Gas & Fuel Company nor any waiver thereof made by that company; that the case was continued until August 18, 1924, at which time it was tried and judgment rendered in said cause. It is a long judgment, and only the pertinent parts will be set out herein. It recites that "on this the 18th day of August A. D. 1924, this cause was called for trial, and thereupon appeared each and all of the plaintiffs and announced ready for trial, as did also each and all of the defendants, except the following defendants, viz." (The Empire Gas & Fuel Co. is not one of them.)

It further recites: "* * * And the defendants, Empire Gas & Fuel Company, E. L. Noble and J. H. Lynd, ought to have and recover of and from the defendants, S. E. Bevers, M. B. Finkelstein and A. Boyd, the land sued for by them herein."

And again it recites: "* * * And also by the cross-action of the defendant, Empire Gas & Fuel Company, E. L. Noble and J. H. Lynd, and said defendants, Houston Production Company, Empire Gas & Fuel Company, E. L. Noble and J. H. Lynd, announced to the court that they dismissed their cross-action against said defendant, Earl Wharton, and accordingly the court ordered that this cause as to said defendant, Earl Wharton, be and the same is hereby dismissed."

Again it recites: "* * * And further it is ordered, adjudged and decreed by the court that said defendants, E. L. Noble and J. H. Lynd, do have and recover of and from the said defendant, Empire Gas & Fuel Company, the sum of Fifteen Thousand Six Hundred and Seventy-nine & 12/100 ($15,679.12) Dollars, with interest thereon from this date at the rate of 6% per annum, and further that this judgment and recovery in favor of said defendants, E. L. Noble and J. H. Lynd, is without prejudice to their right to hereafter recover of and from said defendant, Empire Gas & Fuel Company, all royalties not included in the sum of money above mentioned and which may accrue after August 19th, 1924, under and in accordance with the provisions, terms and conditions of that certain oil and mineral lease above mentioned from said E. L. Noble and J. H. Lynd to said Empire Gas & Fuel Company, of date June 1st, 1922, recorded in Vol. 115, pages 87 et seq., Deed Records of Liberty County, Texas."

It is undisputed that no citation was issued or served upon the Empire Gas & Fuel Company on the cross-bill filed by Lynd and Noble asking for an accounting between them. However, it is contended that on the face of the judgment entered the Empire Gas & Fuel Company made its appearance in the case at a time and under such circumstances as to require it to take notice of their cross-bill. It is shown by the record that the cross-bill by Lynd and Noble against the Empire Gas & Fuel Company was filed on March 3, 1924; that the case...