McGlothing v. Cactus Petroleum, Inc.

Decision Date07 October 1965
Docket NumberNo. 4396,4396
Citation394 S.W.2d 955
PartiesAnna Dea McGLOTHING, Appellant, v. CACTUS PETROLEUM, INC., et al., Appellees.
CourtTexas Court of Appeals

Robert A. Rowland, Morgan Nesbitt, Austin, for appellant.

Conde N. Anderson, Victoria, Liddell, Austin, Dawson & Sapp, W. Robert Brown, Houston, J. P. Darrouzet, Austin, Linton S. Benge, Goliad, for appellees.

WILSON, Justice.

Summary judgment for defendant-appellees was rendered in appellant's bill of review proceeding seeking to vacate a 1961 judgment under which appellant was held to have no interest in production from wells on described lands under certain oil, gas and mineral leases. Appellant contends issues of material fact existed precluding summary judgment under Rule 166-A, Texas Rules of Civil Procedure. We affirm.

In 1959, Cactus Petroleum Corporation filed a bill of interpleader to determine ownership of oil production from two 40-acre tracts out of 406 2/3 acres. Appellant promptly answered by general denial through counsel, and six months later filed amended pleadings through other attorneys. Appellant also filed a cross-action against one of her interpleaded co-defendants, Dingle, seeking to cancel a contract and royalty deeds. Dingle's plea of limitation to the cross-action was sustained, and no attack is made on that order.

In 1942 appellant owned the west 200 acres out of the 406 2/3 acres in fee. She owned a life estate in the east 206 2/3 acres, with remainder in her children. She executed an oil and gas lease to Brock, describing the entire 406 2/3 acres, without reference to the life estate. This lease was assigned to Amerada Petroleum Corporation. In 1944 appellant executed two royalty deeds to Leveridge and Fairchild covering undivided 1/4 and 1/2 interests respectively in the west 200 acres. These deeds recited the sales were 'subject to' the oil and gas leases which described the entire 406 2/3 acres, and recited the sale covered and included royalty 'to be paid under the terms of' these leases. Thereafter appellant's children conveyed to her their remainder interest. The wells in question were located on the east 206 2/3 acres.

After extended trial of the interpleader action the trial court concluded that by the rule in Hoffman v. Magnolia Petroleum Company, Tex.Com.App., 273 S.W. 828, appellees claiming under the royalty deeds were entitled to royalty from production on both the 200-acre west tract and the 206 2/3 acre east tract. Judgment was rendered November 22, 1961 awarding their proportionate part of the production payments to appellees, and declaring that appellant owned no interest in production from the wells.

November 8, 1963 appellant filed her bill of review. In January, 1965 her amended trial pleading was filed. It alleged that the pleadings in the interpleader action 'constituted a fraud upon the court' because its allegations as to the contents or effect of specified leases and royalty deeds were not in accord with the true facts; that attorneys representing appellant's co-defendants in that action defrauded the court by failing to introduce into evidence all recorded instruments affecting the title to the mineral estate after assuring the court they would do so; that they falsely represented production was under the Brock lease which covered the entire 406 2/3 acres, in effect concealing the fact that the 206 2/3 acres was a life-estate tract covered by a separate lease; that the form for judgment was sent to appellant November 20, 1961 and judgment was rendered two days later, giving appellant 'no time to object' before it was entered; that the judgment disregarded a pooling unit, thereby making award to Dingle which would otherwise have gone to appellant. Other attacks on the judgment as it relates to Dingle will not be summarized, since his plea of limitation was sustained without complaint. It was asserted the judgment was void for various reasons which obviously do not result in invalidity.

Appellant also averred she was physically and mentally incapable of defending herself before and after trial; that she was worried by inability to retain an attorney; that she had consulted and sought to employ numerous attorneys; that she did not understand the trial was to be held when it was; that she was not represented by counsel at the trial, and answered that she was not ready for trial; that she sent to the district clerk a document containing arguments that the judgment rendered was erroneous, which the trial judge notified her would be considered as a motion in arrest of judgment; that she was not negligent; that she had a meritorious defense because she owned only a life estate in the 206 2/3 acres when the royalty deeds were executed; that the court erroneously construed and applied the doctrine in the case of Hoffman v. Magnolia Petroleum Company; that appellees had signed a division order by which they disclaimed interest in the 206 2/3 acres. Other relief not material here was prayed for.

Appellee Dingle's motion for summary judgment included an affidavit by the official court reporter who reported the interpleader proceeding, incorporating a certified transcription of the evidence and proceedings at the interpleader trial. Cactus Petroleum and other defendants adopted this motion and affidavit. Appellant's affidavit related difficulty with her attorneys over fee arrangements, her efforts to obtain other counsel during the next 10 months, her inability to retain attorneys because they all desired a contingent royalty interest as a fee; that she informed the trial judge she had...

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4 cases
  • Ramsey v. State
    • United States
    • Texas Court of Appeals
    • January 16, 2008
    ...from presenting it, even assuming (which we do not) that the court erred by doing so. See McGlothing v. Cactus Petroleum, Inc., 394 S.W.2d 955, 958 (Tex.Civ.App.-Waco 1965, writ ref'd n.r.e.) ("judicial error is not ground for vacating a judgment by equitable bill of review"); Metropolitan ......
  • Gordon Yates Bldg. Supplies, Inc. v. Fidelity & Cas. Co. of New York
    • United States
    • Texas Court of Appeals
    • November 5, 1976
    ...affidavits and depositions, the rule we have here approved should present no problems.' See also McGlothing v. Cactus Petroleum, Inc., 394 S.W.2d 955 (Tex.Civ.App., Waco, 1965, ref., n.r.e.). We hold that the pleadings of the insurer cannot be considered as summary judgment proof. The under......
  • Callaway v. Elliott, 419
    • United States
    • Texas Court of Appeals
    • April 10, 1969
    ...235 S.W. 558; Ruland v. Ley, (Tex.Com.App.) 135 Tex. 591, 144 S.W.2d 883; Garcia v. Jones, supra; McGlothing v. Cactus Petroleum, Inc., (Tex.Civ.App.) 394 S.W.2d 955. Since appellant failed to explain the long delay in filing suit, we think his lack of diligence is established as a matter o......
  • Smith v. Manger, 14832
    • United States
    • Texas Court of Appeals
    • January 7, 1970
    ...property, a judicial error is not grounds for vacating a judgment by equitable bill of review. McGlothing v. Cactus Petroleum, Inc., 394 S.W.2d 955 (Tex.Civ.App.--Waco 1965, writ ref'd n.r.e.); Metropolitan Life Ins. Co. v. Pribble, 130 S.W.2d 332 (Tex.Civ.App.--Fort Worth 1939, writ ref'd)......

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