Haught v. Continental Oil Co.

• Decision Date: 27 April 1943
• Docket Number: 30277.
• Citation: Haught v. Continental Oil Co., 136 P.2d 691, 1943 OK 159, 192 Okla. 345 (Okla. 1943)
• Parties: HAUGHT et al. v. CONTINENTAL OIL CO.
• Court: Oklahoma Supreme Court

136 P.2d 691

192 Okla. 345, 1943 OK 159

HAUGHT et al. v. CONTINENTAL OIL CO.

No. 30277.

Supreme Court of Oklahoma

April 27, 1943

Syllabus by the Court.

1. 12 O.S.1941 § 100, which provides that if an action be commenced in due time and fails otherwise than upon its merits, a new action may be commenced within one year, will be liberally construed.

2.A tort action brought within two years from the date of accrual of the cause of action will save a second action brought within one year after the date of dismissal of the first action from the bar of the two-year statute of limitations if the cause of action is the same in both cases and the partiesplaintiff are substantially the same, that is, suing to enforce the same right.

3.An action by a husband for damages to real property, jointly owned by said husband and his wife, failed on account of nonjoinder of the wife as a partyplaintiff, and a second action by said husband and wife as co-plaintiffs was instituted more than two years after the accrual of the cause of action, but within one year of the date of the failure of the former action.Held, that said second action was not barred by limitations.

Appeal from Superior Court, Seminole County; Otis H. Presson, Judge.

Action by Dan Haught and Hazel Haught against the Continental Oil Company to recover for damages to real property.From a judgment entered for defendant upon sustaining a demurrer to the petition and after plaintiffs elected to stand upon the petition, plaintiffs appeal.

Reversed and remanded with directions.

GIBSON V. C.J., and BAYLESS, J., dissenting.

Bishop & Bishop, of Seminole, for plaintiffs in error.

William H. Zwick and A. L. Hull, both of Ponca City, and R. J Roberts, of Wewoka, for defendant in error.

OSBORN Justice.

This action was instituted in the Superior Court of Seminole County on August 3, 1939, by Dan Haught and Hazel Haught, hereinafter referred to as plaintiffs, against the Continental Oil Company, hereinafter referred to as defendant, wherein plaintiffs sought recovery of damages to real property owned by them.It was alleged that defendant, in conducting operations for oil and gas upon the land, had neglected to bury certain pipe lines and other obstructions upon the surface of the land, which had resulted in damage to the real property, and that defendant had also permitted oil, salt water and other deleterious substances to flow across the surface of the land, resulting in further damage.

It was further alleged that the action had been formerly instituted in the Superior Court of Seminole County by the plaintiff, Dan Haught, on March 10, 1936; that the cause was tried on October 3, 1938, and after plaintiff's evidence had been introduced, defendant demurred on the ground that Hazel Haught was a necessary party to the action; whereupon plaintiff, Dan Haught, by permission of court, dismissed the action without prejudice in open court on said date; that the action failed otherwise than upon its merits.

Defendant demurred to plaintiffs' petition on the ground that the cause of action was barred by the statutes of limitation which were not suspended by the pendency of the former action.The demurrer was sustained.Plaintiffs elected to stand upon the petition, excepted to the ruling of the court and prosecuted the present appeal to this court.

But one proposition is presented for reversal, and that is that "A new action brought on the same cause of action in conjunction with the plaintiff in the original action if brought within a year therefrom, and if based upon the same cause of action and title, is not barred by the statute of limitations."

12 O.S.1941 § 100, provides: "If any action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if he die, and the cause of action survive, his representatives may commence a new action within one year after the reversal or failure."

This statute is remedial and should be liberally construed.Meshek v. Cordes,164 Okl. 40, 22 P.2d 921.

The rule of liberal construction requires that this provision should be given a construction "so as to cover all cases which may come within its terms by intendment."Claussen v. Amberg,172 Okl. 197, 44 P.2d 92, 95;Stevens v. Dill,142 Okl. 138, 285 P. 845.

Plaintiffs alleged that "they jointly acquired the title to the property *** and that they were the owners and in actual possession on the 25th day of April, 1931."We have held that where a tract of land has been conveyed in fee to husband and wife, the conveyance indicating no intent to create an estate in joint tenancy, they hold as tenants in common.Hamra v. Fitzpatrick,55 Okl. 780, 154 P. 665.Under the record before us, plaintiffs are tenants in common of the real property involved herein.Under the provisions of 32 O.S.1941 § 8, a husband and wife may hold real property as tenants in common.

It is required by 12 O.S.1941 § 221, that, except as otherwise provided therein, every action must be prosecuted in the name of the real parties in interest.

12 O.S.1941 § 230, provides: "All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this article."

12 O.S.1941 § 231, provides: "Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein."

12 O.S.1941 § 232, provides: "Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason being stated in the petition."

The rule is well established in this jurisdiction that where two parties have a joint interest in property, they must join in an action for injuries to such property.SeeCity of Weatherford v. Rainey,151 Okl. 183, 3 P.2d 153;Independent Oil & Gas Co. v. Jackson,148 Okl. 199, 298 P. 266.In the cases of Stinchcomb v. Patteson,66 Okl. 80, 167 P. 619, andSt. Louis & S. F. R. Co. v. Webb,36 Okl. 235, 128 P. 252, 253, we said that "Joint owners of property must unite as plaintiffs in one action for an injury thereto or for a conversion thereof."

It is the general rule that a joinder of cotenants is required in actions "for trespasses upon the common land ***."14 Am.Jur., Cotenants, § 98, p. 163.

A defendant has the right to have a...