Glo Co v. Murchison, 14438.
| Decision Date | 06 January 1954 |
| Docket Number | No. 14438.,14438. |
| Parties | GLO CO v. MURCHISON et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Thomas H. Fisher, Chicago, Ill., Carl Wright Johnson, San Antonio, Tex., for appellant.
Lucian L. Morrison, John H. Dittmar, P. H. Swearingen, L. M. Bickett, San Antonio, Tex., M. D. Kirk, James C. Denton, Jr., Tulsa, Okl., for appellees.
Before HUTCHESON, Chief Judge, and HOLMES and RUSSELL, Circuit Judges.
The appellees, in addition to filing their answers and motions for summary judgment, made their respective motions to dismiss the appellant's complaint on the ground that it was a foreign corporation doing business in Texas without a permit as required by the statutes of Texas, and, therefore, was incapacitated to maintain said action. Articles 1529, 1536, and 2031a, Revised Civil Statutes of Texas 1925, Vernon's Ann. Civ.St. arts. 1529, 1536, 2031a. The court below sustained appellees' motion, and entered a judgment of dismissal.
The complaint alleged that in September, 1941, appellant was the owner of certain mineral interests in lands located in Jim Wells County, Texas. On said date, appellant executed and delivered to T. F. Murchison a contract assigning oil and gas leases, reserving to the assignor an overriding royalty of 1/16th of the oil and gas produced. The contract provided that, upon failure of certain obligations by the assignee, the assignment would become null and void; and that it would be the duty of the assignee to reassign said leases to the assignor. The complaint further averred that there had been a failure on the part of the assignee and its assigns to pay the assignor the 1/16th provided in said contract, and that the assignee had acquired new leases and renewal leases in disregard of the contract of 1941. The complaint, although in seven counts, is seeking either specific performance of said contract or money damages for the breach thereof.
The issue is whether, as a matter of law, the appellant was transacting business in the state of Texas within the meaning of the Texas statutes. The statutes of Texas provide that a foreign corporation shall procure a permit to transact business within the state and, upon failure to obtain said permit, that said corporation cannot maintain any suit in Texas upon any demand, whether arising out of tort or contract. Articles 1529 and 1536 of the Revised Civil Statutes of Texas.
It is undisputed that the appellant is a foreign corporation and that it failed to obtain a permit to transact business in the state of Texas. The appellant claims that it was not doing business in Texas, and that there is no evidence in the record indicating that it was. We do not concur in this contention. The contract of 1941 between the appellant and appellee Murchison was...
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