Hunt Tool Co. v. Moore, Inc., 14489.

• Decision Date: 06 May 1954
• Docket Number: No. 14489.,14489.
• Citation: 212 F.2d 685
• Parties: HUNT TOOL CO. v. MOORE, Inc.
• Court: U.S. Court of Appeals — Fifth Circuit

212 F.2d 685 (1954)

HUNT TOOL CO. v. MOORE, Inc.

No. 14489.

United States Court of Appeals Fifth Circuit.

May 6, 1954.

Alfred J. DeLange, C. M. Hudspeth, Eugene J. Pitman, Houston, Tex., for appellant.

Cooper K. Ragan, Jean M. Worsham, Houston, Tex., for appellee.

Before BORAH and RUSSELL, Circuit Judges, and DAWKINS, District Judge.

BORAH, Circuit Judge.

This is an appeal from a judgment of the lower court dismissing appellant's intervention for lack of jurisdiction.

On February 20, 1946, A. E. Boger, a citizen of Texas, filed suit in the United States District Court for the Eastern District of Texas against Moore, Inc., a Georgia corporation, (1) to recover an alleged interest in certain oil and gas leases and leasehold rights, (2) for the appointment of a receiver for defendant, (3) for an injunction against defendant's interference with plaintiff's management and control of the drilling of certain oil wells being drilled as a joint venture by plaintiff and defendant, and (4) to recover an indebtedness alleged to be due plaintiff under said joint venture agreement of not less than $55,000.

District Judge Bryant issued a temporary restraining order on February 20, 1946, but after a hearing on February 25, 1946, denied the application for a temporary injunction and refused to appoint a receiver, finding that the District Court of Newton County, Texas, in a suit by Moore, Inc., against A. E. Boger which had been filed on February 20, 1946, had, on that same day, appointed a receiver for Moore, Inc., and had taken possession of all the properties involved in this cause.

On April 11, 1946, appellant, Hunt Tool Company, obtained leave to intervene herein and filed its petition of intervention the following day alleging that it was a Texas corporation and that the defendants were: A. E. Boger and T. R. Boger, individually and as constituting a co-partnership doing business as Boger and Boger, citizens of Texas; A. A. Waitkus, a citizen of Texas; Wiley L. Moore, a citizen of Georgia; Robert Patton, a citizen of Texas; and Moore, Inc., a Georgia corporation. Appellant further alleged (a) a suit for debt for material furnished in the amount of $4,359.48 for which all the named defendants were claimed to be jointly and severally liable, (b) that appellant was entitled to a constitutional, statutory and contract lien on the leases described in exhibits annexed to the petition, and foreclosure of same, and (c) "That the title to and operation of the oil, gas, and mineral leases and the well above described are involved in this cause of which this Court has jurisdiction; that plaintiff in this cause seeks receivership of such property; that this cause involves the title to the aforesaid leases and the right to operate thereunder; that as aforesaid this intervener has liens on such leases, the oil well, and other items and properties hereinabove described and that its right will be seriously affected by the judgment rendered in this cause; that the intervention of this intervener is necessary for proper protection of its interest and the judgment and adjudication of rights of the parties, and this intervener is a necessary and proper party to this action."

On May 23, 1946, plaintiff filed an amended complaint against Moore, Inc., omitting any claim for injunction, receivership or claim of ownership in the leases and leasehold rights and instead claiming a lien on all the assets, leases and acreage held under lease by defendant and praying for a judgment fixing the indebtedness of defendant in an amount to include the $55,000; the impressing of a lien to secure payment of same; and that execution or order of sale issue thereon. On June 4, 1946, Moore, Inc., and Robert Patton moved to dismiss the intervention for want of jurisdiction. On March 10, 1947, on joint motion of plaintiff and defendant, alleging that they had settled their differences by consent judgment in the state court, Judge Bryant dismissed the suit of Boger against Moore, Inc., with prejudice at plaintiff's cost. Seventeen days thereafter he denied the motion of Moore, Inc., and Patton to dismiss the intervention, the order reading in part: "* * * and the intervention of Hunt Tool Company heretofore filed herein on the 11th day of April, 1946, be, and the same is permitted to remain on the docket of this court for further action in due course." Following the entry of this order Moore, Inc., and Patton answered the intervention, setting up the defense of lack of jurisdiction, failure to state a claim, a denial of the material facts in the petition of intervention and a cross-claim against the other defendants in intervention. On January 24, 1949, the intervention came on for hearing after dismissal by intervener as to all parties except Moore, Inc. However, no decision was handed down and the only record of any action by the court was a notation on Judge Bryant's docket reading as follows: "1 24-49 — Trial before the Ct. (Wiley Moore not a party) Dis. by Intervener vs. Boger & Boger, Waitkus & Robt. Patton. Jdgt. for Intervener Hunt Tool Co.".

Later, and after the death of Judge Bryant, Moore, Inc., filed another motion to dismiss for lack of jurisdiction, to which motion intervener filed an answer. Thereafter, Waitkus answered the cross-claim against him, pleading lack of jurisdiction as to both the intervention and the cross-claim, failure of the cross-claim to state a claim, and certain matters in bar thereof. These...