Lee v. Robinson

Decision Date08 September 1955
Docket NumberNo. 6816,6816
Citation282 S.W.2d 397
CourtTexas Court of Appeals
PartiesW. Edward LEE, Appellant, v. Mary E. ROBINSON, Appellee.

Lawrence & Lawrence, Tyler, for appellant.

James R. Lewis, Craven Beard, Tyler, for appellee.

DAVIS, Justice.

Mary E. Robinson, a feme sole, sued Blaine Dunbar, Mable Longstreth, individually and as executrix under the last will and testament of Annie M. Atkinson, deceased, Ada L. Talbot, a feme sole, W. Edward Lee, and his former wife, Hattie R. Lee, a feme sole, for damages for oil allegedly taken illegally from appellee's oil and gas lease which lease is situated in the I. C. Skillern Survey in Gregg County, Texas. Appellee owned a 3/4 of the 7/8 interest in an oil and gas lease on 4.277 acres of land designated in the pleading as the Robinson-Skipper-Garner Lease; defendant Dunbar owned the other 1/4 interest in said lease. All of the above named defendant owned an oil and gas lease upon a tract of land joining said 4.277 acre lease on the East, and designated in the pleading as the Dunbar-Skipper-Garner Lease. Plaintiff alleged that defendant Dunbar, acting for himself and as the agent of the other defendants, drilled three wells from the surface of their lease adjoining said 4.277 acre lease and bottomed them beneath said 4.277 acre tract; said wells were drilled on a curvature by a method called 'whipstocking.' The Tyler State Bank and Trust Company of Tyler and the Peoples National Bank of Tyler are made defendants because of liens held by them against certain interests in the lease belonging to some of the defendants but no relief was sought against them.

Appellee's petition contains about 28 pages with an exhibit attached. But this appeal concerns only the question of venue as a result of a plea of privilege filed by appellant, W. Edward Lee, which plea of privilege was duly controverted, tried before the court without the aid of a jury, and resulted in a judgment overruling said plea. Lee has duly perfected his appeal.

Hattie R. Lee was the only defendant residing in Smith County at the time of the filing of this suit against whom judgment was sought and appellee attempts to maintain jurisdiction in said county under subdivision 4 of Article 1995 which provides that a suit against two or more persons may be maintained in the county of the residence of either of said defendants.

Appellee alleged that she finally acquired her interest in said 4.277 acre oil and gas lease involved here about April 22, 1941, and which was finally awarded and partitioned to her by judgment of the District Court of Stephens County, Texas, on January 31, 1944, and partition agreement entered into on February 22, 1944. She alleged that she learned of the illegal production of oil from her lease the latter part of December, 1952. She alleged in section 5 of her petition that the defendant Hattie R. Lee acquired her interest in the adjoining lease from her former husband, W. Edward Lee, on or about August 11, 1953. She alleged in section 11 of her petition that from February 22, 1944, until shortly prior to the institution of this suit, the adjoining lease had been owned exclusively by all of the defendants, except the banks, but including defendant Hattie R. Lee, and other defendants who were not sued but later conveyed the interest, if any, held by them to appellee.

Appellee further alleged: '* * * that during said period, from February 22, 1944, said lease was operated as a unit, with each of the aforesaid common owners sharing, according as his or her interest appeared, in the profits and losses resulting from operation of the lease, sharing in that proportion in the proceeds from oil sales and bearing in that proportion the costs and expenses incurred in operating said lease and in drilling and reworking oil wells situated thereon in whole or in part; that throughout said period and at all times material to this controversy the defendant Blaine Dunbar, being then duly authorized and appointed by each of the members of said partnership so to do, acted as the managing partner of said partnership, in which capacity he was and is in possession of and in active and limmediate authority over drilling and producing operations carried on upon said lease, all such matters, operations, and activities being within the scope of the partnership business and within the scope of the authority so delegated to the defendant Blaine Dunbar, for all of which reasons plaintiff says that each of the defendants herein is jointly and severally liable for all injuries suffered by plaintiff and proximately caused by the wrongful acts of Blaine Dunbar committed in the exercise, and within the scope, of the authority to him so granted.' And appellee alleged that large quantities of oil were produced from the three wells surfaced on defendant's lease and bottomed beneath plaintiff's lease and that such oil: '* * * was wrongfully converted to their use and benefit * * *' (Said wells involved here being designated in the pleading as wells Nos. 3, 4 and 5).

Appellant brings forth one assignment of error which complains of the action of the trial court in overruling his plea of privilege because appellee failed to prove a cause of action against the resident defendant, Hattie R. Lee.

It is now well settled that in order to establish venue under sub-division 4 of Article 1995, the following facts must be alleged and proved:

1. There must be two or more defendants.

2. One or more of the defendants must reside in the county in which the suit is filed.

3. One or more of the defendants must reside in another county.

4. There must be a proper joinder; that is, those joined as defendants must all be proper parties to the suit.

5. There must have been a cause of action alleged against both the resident and non-resident defendants.

6. There must be proof of a valid cause of action against the resident defendant.

We are only concerned on this appeal with the sixth requirement above and in support of that requirement we cite Compton v. Elliott, Tex.Com.App., 88 S.W.2d 91, opinion adopted by the Supreme Court; Boger v. Leyendecker, Tex.Civ.App., 209 S.W.2d 210; Stewart v. McLean, Tex.Civ.App., 210 S.W.2d 274; and the authorities cited in the foregoing cases. As pointed out by Judge Smedley in the case of Stock Yards National Bank v. Maples, Tex.Com.App., 127 Tex. 633, 95 S.W.2d 1300, 1302, citing Caprito v. Weaver, Tex.Civ.App., 77 S.W.2d 595, '* * * another venue fact which the plaintiff is required to plead and prove has been added to exception 4 by judicial construction. It is that the plaintiff to prevent the change of venue must also plead and prove that he has in fact a cause of action against the resident defendant.' (Emphasis ours.)

Appellee proved the ownerships alleged as well as the curvature or whip-stock drilling of wells Nos. 4 and 5 from the surface of defendants' lease to a point beneath the surface of said 4.277 acre lease, 3/4 of which was owned by appelle...

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5 cases
  • Turner v. Superior Court In and For Pima County
    • United States
    • Arizona Court of Appeals
    • June 6, 1966
    ...whose residence the venue is predicated. Stockyards National Bank v. Maples, 127 Tex. 633, 636, 95 S.W.2d 1300 (1936); Lee v. Robinson, 282 S.W.2d 397 (Tex.Civ.App.1955); Harris v. Cleveland, 294 S.W.2d 235 (Tex.Civ.App.1956); Miles v. Meadows, 309 S.W.2d 284 In Miles v. Meadows, 309 S.W.2d......
  • McCuistion Const. Co. v. Barfield, 7080
    • United States
    • Texas Court of Appeals
    • November 25, 1958
    ...of Article 1995, Vernon's Ann.Civ.St. The pleas of privilege were overruled and Droddy and McCuistion have appealed. In Lee v. Robinson, Tex.Civ.App., 282 S.W.2d 397, 399, wr. dis., it is 'It is now well settled that in order to establish venue under sub-division 4 of Article 1995, the foll......
  • T. S. Lankford & Sons, Inc. v. Harry Eldridge Co.
    • United States
    • Texas Court of Appeals
    • July 24, 1962
    ...Under Subdivision 4 of Art. 1995, R.C.S., there must be proof of a valid cause of action against the resident defendant. Lee v. Robinson (Tex.Civ.App.) 282 S.W.2d 397 wr. dism.; MacDonald v. Trammell, Tex.Civ.App., 351 S.W.2d 89, n. w. h.; 1 MacDonald Texas Civil Practice 334, Sec. 4.10. Th......
  • Harrington v. State
    • United States
    • Texas Court of Appeals
    • November 18, 1964
    ...opinion, should shoulder the burden of establishing its case unaided by presumptions applicable in ordinary civil actions. See Lee v. Robinson, 282 S.W.2d 397, Texarkana Civ.App., writ dism., where it is held that neither the capacity of a well to produce oil or that its allowable had been ......
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