McKee v. Eskrigge

• Decision Date: 02 April 1962
• Docket Number: No. 724,724
• Parties: Hugh McKEE v. Tatham R. ESKRIGGE.
• Court: Court of Appeal of Louisiana — District of US

Page 545

139 So.2d 545

Hugh McKEE v. Tatham R. ESKRIGGE.

No. 724.

Court of Appeal of Louisiana, Fourth Circuit.

April 2, 1962.

O'Niell & O'Niell, Charles A. O'Niell, Jr., and Monroe & Lemann, Malcolm L. Monroe, Bat P. Sullivan, Jr., New Orleans, Benjamin R. Slater, Jr., Port Sulphur, for relator.

Duke & Porterie, New Orleans, for respondent.

Before McBRIDE, REGAN and JOHNSON, JJ.

McBRIDE, Judge.

We granted certiorari herein, and the record which has been brought up to us pursuant to the writ discloses that plaintiff alleged in his petition that he and defendant are geologists; that they entered into an agreement for the practice of their profession as a partnership and that as such have engaged in certain phases of the oil business, during the course of which an oil, gas and mineral lease was acquired from one Fasterling (owner of the land), covering certain property in the Parish of Plaquemines, which lease was taken in the names of one Crutcher and defendant, Eskrigge. Crutcher is not a party to this litigation and his interest in the lease is not invoked herein. Eskrigge and Crutcher assigned the Fasterling lease to Stanolind Oil & Gas Company, the assignment containing a provision for reassignment thereof by Stanolind Oil & Gas Company to Crutcher and Eskrigge. On July 9, 1959, the lease was reassigned by the successor of Stanolind Oil & Gas Company to Eskrigge and Crutcher.

In November of 1956 plaintiff, McKee, and defendant, Eskrigge, by mutual consent terminated their partnership, and pursuant thereto divided the movable assets, such as office fixtures, maps, etc., and the funds in the joint bank account were used to satisfy outstanding debts, and whatever remained was divided between the parties, and it was agreed and understood that any other asset inuring to the partnership thereafter was to be shared between the partners individually on the proportionate basis on which the partnership had existed, namely 40 percent to petitioner and 60 percent to defendant. Plaintiff, after the termination of the partnership relationship, removed himself from what had been its office and established his own office for the purpose of carrying on his pursuits as a geologist. Plaintiff alleges that subsequent to November 1956 there were several instances wherein rights or assets arising from the partnership were divided between the parties in accordance with their agreement.

Plaintiff further alleges he did not learn of the reassignment of the Fasterling lease covering the property in Plaquemines Parish by the successor of the Stanolind Oil & Gas Company to Crutcher and Eskrigge until a time subsequent to the dissolution of the partnership and not then until after the leased property had been developed and there was production of oil and gas from the land.

Plaintiff brought this suit in the Civil District Court for the Parish of Orleans against Eskrigge; he prays that he be recognized as the owner of 40 percent of defendant's interest in the Fasterling lease which had been reassigned to Eskrigge and Crutcher, and that defendant be 'mandamused' to transfer 40 percent of his interest in and to the lease to plaintiff.

Plaintiff then makes several successive alternative demands, the first of which is that in the event Eskrigge has assigned, sold or disposed of or transferred in any manner any or all of petitioner's 40 percent interest, that defendant be commanded by a writ of mandamus to transfer such interest as remains in his name, if any, to plaintiff, and that defendant be compelled to account for the present value of that portion of the lease which he is unable to transfer to plaintiff because of prior disposal; and then, in the further alternative, plaintiff prays for a full accounting of all partnership assets which may have come into defendant's possession after the dissolution of the partnership and which he has appropriated to his own use. By supplemental petition plaintiff reiterated the prayer in the original petition and prayed for further alternative relief, viz., that defendant be condemned to account to plaintiff for all sums that he has received and all properties or rights he may have obtained through his improper management and control of plaintiff's interest in and to the lease on the property in Plaquemines Parish; and further that plaintiff have judgment against defendant for damages in the sum of $200,000 for defendant's illegal appropriation of plaintiff's property rights.

Defendant, on October 16, 1961, interposed the declinatory exception of improper venue which points out that plaintiff is claiming and asserting ownership of an interest or right in an oil, gas and mineral lease which covers and affects lands situated in the Parish of Plaquemines; it is alleged in the exception that the property or right which the plaintiff is claiming and in which he asserts an ownership is classified by law as a real right and incorporeal immovable property; that under the applicable provisions of the Code of Civil Procedure, an action to assert ownership of or interest in, or a right to, or against immovable property shall be brought in the parish where the property is located. Defendant prayed that his exception of improper venue be sustained and that plaintiff's suit be dismissed at his cost.

By formal judgment rendered February 12, 1962, the court below overruled the exception, whereupon defendant applied to us for a writ of certiorari directed to the trial judge ordering him to send up to this court the entire record, or a certified copy thereof, in order that the validity of the proceedings complained of may be ascertained and determined, and for a writ of prohibition forbidding the trial judge from taking further action in the cause. Relator also prayed that his exception to the venue be maintained and that plaintiff's suit be dismissed, and for all equitable and general relief. We issued certiorari coupled with an order staying all further proceedings in the trial court.

The matter is now before us under our supervisory powers.

A judgment overruling an exception to the jurisdiction is interlocutory and may be reviewed on appeal from a final judgment. But where it would be an utterly vain thing for a court without jurisdiction, and whose jurisdiction has been properly challenged, to proceed with the hearing of a case on its merits and subject the litigants to useless expense and inconvenience, the supervisory jurisdiction of the appellate court may be invoked and a writ of prohibition may issue forbidding the trial court to proceed further in the cause on the ground that cognizance thereof does not belong to such court and that it is not competent to decide it. Plitt v. Plitt, 190 La. 59, 181 So. 857; Dalgarn v. New Orleans Land Co., 157 La. 387, 102 So. 498; State v. City of New Orleans, 149 La. 788, 90 So. 196; City of Gretna v. Bailey, 140 La. 363, 72 So. 996; Iberia, St. M. & E.R. Co. v. Morgan's L. & T.R. & S.S. Co., 129 La 492, 56 So. 417; Terrebonne Parish School Board v. St. Mary Parish School Board, La.App., 131 So.2d 266.

A mineral lessee or sublessee, the owner of a mineral interest in immovable property, the owner of a mineral royalty, or of any right under or obligation resulting from a contract to reduce oil, gas, and other minerals to possession, is the owner of a real right. These rights may be asserted, protected, and defended in the same manner as the ownership or possession of immovable property and without the concurrence, joinder, or consent of the owner of the land. LSA-C.C.P. art. 3664; R.S. 9:1105 (source Acts 1938, No. 205, as amended Acts 1950, 2nd Ex.Sess., No. 6).

Plaintiff, in opposition to the granting of the relief prayed for by relator in this court, takes the position that the Civil District Court for the Parish of Orleans is the proper venue. It is argued that the partnership was only partially dissolved by the mutual agreement of November 1956, and that the present suit looks to a full dissolution thereof and to a settlement of partnership affairs and to a determination of the rights of the partners as between themselves, and whereas the partnership was and both partners were and are now domiciled in New Orleans, the venue of the suit is proper.

This suit was instituted April 27, 1960, which was a date prior to the advent of the Code of Civil Procedure, the effective date of which was January 1, 1961. See Acts 1960, No. 15. The exception of improper venue was filed subsequent to the date the Code of Civil Procedure came into effect.

The suit is not one to dissolve a partnership as the relationship of partners between the parties was dissolved and terminated by their mutual agreement in November of 1956. Nor is this a suit to partition partnership property. Plaintiff's allegations are that a 40 percent undivided interest in the undivided one-half interest in the Fasterling lease standing in the name of relator belongs to him, and ...