Houston Production Co. v. Taylor
| Decision Date | 29 July 1930 |
| Docket Number | No. 1893.,1893. |
| Citation | 33 S.W.2d 202 |
| Parties | HOUSTON PRODUCTION CO. v. TAYLOR et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Liberty County; Thos. B. Coe, Judge.
Action by the Houston Production Company against H. Taylor and others. Judgment of dismissal, and plaintiff appeals.
Affirmed in part, and in part reversed and remanded, with directions.
Baker, Botts, Parker & Garwood, of Houston, and E. B. Pickett, Jr., of Liberty, for appellant.
J. Llewellyn and Smith, Combs & Matthews, all of Liberty, for appellees.
This was an action by appellant, Houston Production Company, to recover of and from appellees H. Taylor and his minor children, for whom he was guardian, and H. Mecom and Mecom Oil Company, the receivership costs, its attorneys' fees, and other costs of preparing its defense, the costs of printing its briefs and certain court costs incurred by it in the preparation and presentation of its defense as one of the defendants in the lower court and one of the appellees on appeal in Taylor v. Higgins Oil & Fuel Company. Appellees' answer consisted of general and special demurrers and pleas of abatement and res adjudicata. The trial court heard evidence on the issues made by the plea in abatement, and entered its order sustaining this plea. The judgment then proceeded to sustain the demurrers, both general and special. The recitation is made in the judgment that, when these orders were announced by the trial court appellant declined to amend; whereupon its cause of action was dismissed. Exceptions were duly entered to all these rulings and this appeal regularly prosecuted therefrom.
As we understand appellant's brief, it waives the irregularity of sustaining the demurrers after the plea in abatement had been sustained, and asks us to determine the merits of its appeal upon the substantive law of the case.
As stated above, appellant was one of the defendants in the lower court and one of the appellees upon appeal of Taylor v. Higgins Oil & Fuel Company, decided by this court on the 11th day of January, 1928, opinion reported in 2 S.W.(2d) 288, under the style Taylor et al. v. Higgins Oil & Fuel Company et al. Petition for writ of error against our judgment was dismissed for want of jurisdiction. In its ultimate results that case, though filed as an action in trespass to try title, was a boundary suit between these appellees as plaintiffs, and against this appellant as defendant over the mineral rights to 1.27 acres of land owned in fee simple by appellee Taylor and his minor children. The facts of that case are fully set forth in our written opinion as reported. It appears therefrom that Mecom Oil Company was claiming the 1.27 acres of land under a mineral lease duly executed by Taylor for himself and as guardian of his minor children. This appellant was claiming the land under a prior mineral lease duly executed by Taylor for himself and as guardian of his minor children. The issue was whether the 1.27 acres of land was in the boundaries of appellant's lease. The judgment of the lower court sustained the contention of appellant and awarded it the 1.27 acres of land. In addition to its rights under its lease, Mecom Oil Company also asserted a claim for improvements in good faith made under its lease. The judgment of the trial court was against Mecom Oil Company on that issue. Upon appeal this court fully sustained the judgment of the trial court in all respects, except upon the issue of the improvements in good faith. On that issue and that issue alone, the case was remanded for a new trial, with instructions to limit the trial to that single issue. When the case came on for trial again under our mandate this appellant filed a petition in cross-action against these appellees, who were plaintiffs on the issue of improvements in good faith, praying for recovery against them of the following items of special damages:
Surveyors
C. N. Black............................ $ 442 50
R. G. Partlow.......................... 697 50
R. C. Wilcox........................... 198 50
W. S. Gillespie........................ 11 00 $ 1,349 50
__________
Attorneys' Fees
Baker, Botts, Parker & Garwood ....... $13,250 00
E. B. Pickett, Jr..................... 13,250 00 26,500 00
__________
Incidental Expenses
E. B. Pickett, Jr..................... $ 137 15
Baker, Botts, Parker & Garwood........ 181 82 318 97
__________
Court Reporter
A. C. Fridge.......................... $ 55 65 55 65
Printing
C. C. Young Printing Company
Printing Briefs..................... 247 50 247 50
Court Costs:
Court of Civil Appeals at Beaumont
.................................... 1,017 00 1,017 00
Auditor's Report for Receiver:
F. G. Masquelette & Co................ 117 00 117 00
_________________________
Total ............................. $29,605 64
It also prayed that appellees be charged with the costs of the receivership totaling $5,821 itemized by it as follows:
Salary of H. A. Dismuke as Receiver................... $5,600 00
Fee Paid for Receiver's bond.......................... 125 00
Expense incurred by said Receiver..................... 96 00
_________
Totaling........................................... $5,821 00
The prayer was that all these items of expense be charged against the royalty interests of appellees Taylor and his minor children at that time in the hands of the receiver. As grounds for recovering these several items of expense, appellant pleaded that the 1.27 acres of land in controversy in Taylor v. Higgins Oil & Fuel Company was within the boundaries of the lease claimed by it under Taylor individually and as guardian of his minor children; that, after having executed appellant's lease, Taylor willfully, wrongfully, and unlawfully, and in violation of the duty owed by him to appellant, executed the lease under which appellee Mecom Oil Company claimed; that the execution of this lease by Taylor and the assertion of affirmative rights thereunder by Mecom Oil Company and the entry upon the land under its lease by Mecom Oil Company constituted both an actual and a constructive ouster against appellant; that to protect its interest under its lease it was forced and compelled to employ surveyors for the purpose of surveying its boundaries; that it was forced and compelled to employ attorneys to present its defense in the lower court and to protect its rights on appeal, and that in doing this its attorneys...
To continue reading
Request your trial
-
Shell Petroleum Corporation v. Howth, 3239.
...results of the wrong complained of; evidence on these issues may be received in support of punative damage. Houston Production Co. v. Taylor, Tex.Civ.App., 33 S.W.2d 202. Without bringing forward the specific points made by appellants against the court's charge, defining terms, complaining ......
-
Thompson v. H. Rouw Co., 12176
...v. Howth, Tex.Civ.App., 133 S.W.2d 253, affirmed Shell Oil Co. v. Howth, 138 Tex. 357, 159 S.W.2d 483; Houston Production Co. v. Taylor, Tex.Civ.App., 33 S.W.2d 202; 15 Am.Jur. Damages, § 142; 25 C.J.S., Damages, § 50; 1 Sedgwick, Damages, pp. 463, 464; McCormick, Damages, p. Moreover, the ......
-
Theatres of America, Inc. v. State
...must come from the party whose wrongful act brought about the appointment of the receiver. Houston Production Co. v. Taylor, 33 S.W.2d 202, 204 (Tex.Civ.App.-Beaumont 1930, writ ref'd); Delcambre v. Murphy, 5 S.W.2d 789, 792 (Tex.Civ.App.-Dallas 1928, no writ); Archer v. Ross, 262 S.W.2d 21......
-
Harrison-Daniels Co. v. Aughtry
...are not recoverable as general or ordinary damages; Brandtjen & Kluge v. Manney, Tex.Civ.App., 238 S.W.2d 609; Houston Production Co. v. Taylor, Tex.Civ.App., 33 S.W.2d 202; Kubena v. Mikulascik, Tex.Civ.App., 228 S.W. 1105; 13 Tex.Jur. 254, and cases there cited; (4) there is insufficient ......