McCurdy v. Gage, No. 1749-6586.

CourtSupreme Court of Texas
Writing for the CourtSharp
PartiesMcCURDY et al. v. GAGE et al.
Docket NumberNo. 1749-6586.
Decision Date14 March 1934

Page 56

69 S.W.2d 56
McCURDY et al.
v.
GAGE et al.
No. 1749-6586.
Commission of Appeals of Texas, Section A.
March 14, 1934.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Suit by T. L. Bray and wife against W. L. McCurdy and others, in which defendants filed a cross-complaint against plaintiffs and J. H. Gage and others. An order overruling a motion to vacate orders appointing a receiver and granting an injunction was reversed by the Court of Civil Appeals [60 S.W. (2d) 468], and the orders appointing receiver and granting injunction were dissolved, and defendant McCurdy and others bring error.

Judgment of Court of Civil Appeals affirmed.

H. G. Corbin, of Gladewater, and W. Edward Lee, of Longview, for plaintiffs in error.

Graves & Long, of Dallas, and Black & Graves, of Austin, for defendants in error.

SHARP, Judge.


This case presents a controversy between two district courts of this state. A suit was filed in the district court of Gregg county by certain parties to cancel a certain mineral lease and instruments executed thereunder. Later, a suit was also filed in the district court of Dallas county by other parties to adjudicate certain mineral interests, and a receiver was appointed, who, acting under the authority of the court, drilled and operated on oil well. Subsequent to the appointment of the receiver by the district court of Dallas county, the pleadings in the district court of Gregg county were amended and new parties brought in, and that court also appointed a receiver to take over the property in possession and under the control and management of the receiver first appointed by the district court of Dallas county, and, in addition thereto, issued a writ of injunction forbidding any interference with the receiver appointed by the district court of Gregg county.

In due time, J. H. Gage and a number of the defendants in the cross-action and the receiver appointed by the district court of Dallas county filed their motion to vacate the orders appointing the receiver and granting the injunction, which was heard by the district

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court of Gregg county and overruled. From this ruling, Gage and others prosecuted their appeal to the Court of Civil Appeals at Texarkana, and the Court of Civil Appeals held that the motion made to vacate the orders appointing the receiver and granting the injunction should have been granted and such orders dissolved. 60 S.W.(2d) 468.

A writ of error was granted in this case upon the proposition that the Court of Civil Appeals erred in holding that the district court of Gregg county was without jurisdiction to issue the writs of injunction complained of, since the district court of Dallas county had appointed a receiver in a proceeding filed therein subsequent to the filing of a suit including the same subject-matter in the district court of Gregg county.

The following controlling facts appear: On November 24, 1931, T. L. Bray and wife filed suit in the district court of Gregg county against W. L. McCurdy and others to cancel a certain mineral lease which had been executed by Bray and wife to certain of the defendants. The plaintiffs in that case alleged that the lease was placed in escrow and was never delivered, and possession of the lease was obtained through fraudulent means. The lease covered about four acres of land in the town of Gladewater, in Gregg county. They also alleged that their property was being drained by drilling operations on adjacent premises, and that, because of the recording of the lease, they were unable to enter into a contract with any one else for the protection of their property, and for that reason they were damaged in the sum of $10,000. It was also alleged that certain assignments of interests under said lease had been made to other persons who were joined as defendants. The prayer was to have the lease and all subsequent executed instruments growing out of the original lease canceled because of the fraud committed on the plaintiffs and for recovery of the $10,000 in damages.

On April 1, 1932, Bray and wife filed their amended petition. It is practically the same as the original petition, except that new defendants were joined and the instruments under which the new defendants claimed were described. This all grew out of the original lease sought to be canceled. The prayer of the amended petition was substantially the same as that contained in the original petition.

On April 8, 1932, T. J. Holcombe, who was not a party to the suit pending in the district court of Gregg county, filed a suit in the district court of Dallas county against J. H. Gage and many others who were not parties in the Gregg county suit, and also against many plaintiffs and defendants in the case pending in Gregg county. It was alleged that plaintiff and defendants in that cause were the owners of all the minerals, royalties, etc., under a certain 3.7-acre tract of land conveyed by T. L. Bray and wife by warranty deed to J. H. Gage. The interests of all the parties interested in the mineral rights were specifically alleged, and it was sought to have an adjudication of such interests in the land and a distribution of the proceeds derived from the sale of the minerals produced from the premises. It was also alleged, because of conflicting claims to the mineral lease on the land, the plaintiff and the other owners of an interest in the minerals were unable to secure development of the property, and that the minerals were being drained by wells on adjacent tracts to the damage of those rightfully entitled thereto, and would continue to be drained unless a receiver should be appointed to take charge and develop the land. The court appointed a receiver who was duly qualified and took possession of the property and, with authority of the court, caused a well to be drilled on the land and was running the oil therefrom until stopped by an order issued by the district court of Gregg county. This record does not show that a plea in abatement setting up the pendency of the suit in Gregg county has been filed therein or that any steps have been taken by any of the parties in the district court of Dallas county to have the order appointing the receiver vacated.

On April 15, 1932, the Independent Supply Company filed an answer in the cause pending in Gregg county, and, in addition to a general demurrer and general denial, filed a cross-action therein for a foreclosure of a...

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19 practice notes
  • Fielder v. Parker, No. 1892
    • United States
    • Court of Appeals of Texas
    • June 17, 1938
    ...Tex. 656, 36 S.W. 53, 33 L.R.A. 171, 59 Am.St.Rep. 84; Stewart v. Poinboeuf, 111 Tex. 299, 233 S.W. 1095; McCurdy v. Gage, 123 Tex. 558, 69 S.W.2d 56; Mudge v. Hughes, Tex.Civ.App., 212 S.W. 819; Temple Trust Co. v. Haney, Tex.Civ.App., 103 S.W.2d 1035; Pruett v. Fortenberry, Tex.Civ.App., ......
  • Reed v. Reed, No. A-6442
    • United States
    • Supreme Court of Texas
    • January 8, 1958
    ...to the court by plea in abatement that another court has prior jurisdiction. Cleveland v. Ward, supra; McCurdy v. Gage, 123 Tex. 558, 69 S.W.2d 56. The plea may be contested. Moreover, parties may by their fraudulent acts and conduct estop themselves from insisting on a right to trial in th......
  • City of Irving v. Dallas/Fort Worth Intern. Airport Bd., No. 2-94-100-CV
    • United States
    • Court of Appeals of Texas
    • February 28, 1995
    ...of a first-filed suit if the second suit involves separate and distinct causes of action, and it relies on McCurdy v. Gage, 123 Tex. 558, 69 S.W.2d 56, 60 (1934) and Justin Indus., Inc. v. Whiteside, 606 S.W.2d 737, 741 (Tex.Civ.App.--Fort Worth 1980, writ dism'd) for this proposition. The ......
  • Texas Mutual Insurance Company v. Howell, No. 13-05-026-CV (TX 8/25/2005), No. 13-05-026-CV.
    • United States
    • Supreme Court of Texas
    • August 25, 2005
    ...Howell should have pursued a plea in abatement because it constitutes an adequate remedy at law. Texas Mutual relies upon McCurdy v. Gage, 69 S.W.2d 56, 59 (Tex. 1934), which provides that "it is the duty of those engaged in the suit first filed to deal frankly with the court in which the s......
  • Request a trial to view additional results
19 cases
  • Fielder v. Parker, No. 1892
    • United States
    • Court of Appeals of Texas
    • June 17, 1938
    ...Tex. 656, 36 S.W. 53, 33 L.R.A. 171, 59 Am.St.Rep. 84; Stewart v. Poinboeuf, 111 Tex. 299, 233 S.W. 1095; McCurdy v. Gage, 123 Tex. 558, 69 S.W.2d 56; Mudge v. Hughes, Tex.Civ.App., 212 S.W. 819; Temple Trust Co. v. Haney, Tex.Civ.App., 103 S.W.2d 1035; Pruett v. Fortenberry, Tex.Civ.App., ......
  • Reed v. Reed, No. A-6442
    • United States
    • Supreme Court of Texas
    • January 8, 1958
    ...to the court by plea in abatement that another court has prior jurisdiction. Cleveland v. Ward, supra; McCurdy v. Gage, 123 Tex. 558, 69 S.W.2d 56. The plea may be contested. Moreover, parties may by their fraudulent acts and conduct estop themselves from insisting on a right to trial in th......
  • City of Irving v. Dallas/Fort Worth Intern. Airport Bd., No. 2-94-100-CV
    • United States
    • Court of Appeals of Texas
    • February 28, 1995
    ...of a first-filed suit if the second suit involves separate and distinct causes of action, and it relies on McCurdy v. Gage, 123 Tex. 558, 69 S.W.2d 56, 60 (1934) and Justin Indus., Inc. v. Whiteside, 606 S.W.2d 737, 741 (Tex.Civ.App.--Fort Worth 1980, writ dism'd) for this proposition. The ......
  • Texas Mutual Insurance Company v. Howell, No. 13-05-026-CV (TX 8/25/2005), No. 13-05-026-CV.
    • United States
    • Supreme Court of Texas
    • August 25, 2005
    ...Howell should have pursued a plea in abatement because it constitutes an adequate remedy at law. Texas Mutual relies upon McCurdy v. Gage, 69 S.W.2d 56, 59 (Tex. 1934), which provides that "it is the duty of those engaged in the suit first filed to deal frankly with the court in which the s......
  • Request a trial to view additional results

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