McKendrick v. Lyle Cashion Co.

• Decision Date: 17 November 1958
• Docket Number: No. 40766,40766
• Citation: 234 Miss. 325,106 So.2d 509
• Parties: Chas. S. McKENDRICK et al. v. LYLE CASHION COMPANY et al.
• Court: Mississippi Supreme Court

Page 509

106 So.2d 509

234 Miss. 325

Chas. S. McKENDRICK et al. v. LYLE CASHION COMPANY et al.

No. 40766.

Supreme Court of Mississippi.

Nov. 17, 1958.

O. B. Triplett, Jr., Forest, Teller & Biedenhard, Vicksburg, Frank F. Mize, Forest, Barnett, Jones & Montgomery, Jackson, Howie, Howie & Montgomery, Jackson, B. D. Statham, Magnolia, for appellants.

Brunini, Everett, Grantham & Quin, Vicksburg, Thos. J. Mallette M. J. Peterson, Jackson, for appellees.

HOLMES, Justice.

On motion of appellees for the allowance of five percent damages on affirmance of cause on appeal.

The appellants, Chas. S. McKendrick and others, filed their original bill in the Chancery Court of Jefferson County, Mississippi, against the appellees, Lyle Cashion Company and others, asserting a claim to an undivided interest in two oil wells and the production therefrom designated as Allen Wells Nos. 6 and 7 in Jefferson County, Mississippi. They prayed that their asserted interest be declared by the Court to be vested in them and that the appellees be required to render an accounting for the proceeds of production derived from the operation of the wells.

The appellees filed an answer and cross-bill. In their answer they denied the claim of the appellants to an interest in the wells and averred that such interests in the wells as had been formery vested in the appellants had become vested in the appellees by the failure of the appellants to advance or legally tender their share of the estimated cost of the drilling operations as required by the terms of a joint operating agreement entered into between the parties. In their cross-bill, the appellees prayed that the interest in the wells claimed by the appellants be adjudged to be vested in the appellees and that the appellants, or the clerk of the court in their behalf, be required to execute a proper assignment of such interest to the appellees.

After a hearing, the trial court denied the prayer of the original bill and ordered that said original bill be dismissed with prejudice and granted the prayer of the cross-bill.

On appeal to this court, the decree of the court below was affirmed. McKendrick, v. Lyle Cashion Company, Miss., 104 So.2d 295. A suggestion of error, filed by the appellants, was overruled on October 1, 1958. 105 So.2d 480, 481.

The appellees have now filed a motion in this Court to alter and enlarge the judgment of affirmance heretofore entered in this cause so as to allow to the appellees five percent damages on the value of the property involved and to remand the cause to the court below for the ascertainment of such value. As the basis for the motion, the appellees rely upon Sections 1971 and 1972, Volume 2 Recompiled, Mississippi Code of 1942. Said section 1971 provides in its pertinent parts as follows: 'In case the judgment or decree of the court below be affirmed, or the appellant fail to prosecute his appeal to effect the Supreme Court shall render judgment against the appellant for damages, at the rate of five per centum and costs, as follows: If the judgment or decree affirmed be for a sum of money, the damages shall be upon such sum. If the judgment or decree be for the possession of real or personal property, the damages shall be assessed on the value of the property * * *.' (Emphasis ours.)

Said Section 1972 provides for the remand of the case to the court below for the ascertainment of the value of the property if such value does not appear in the record.

The appellees contend that the decree affirmed was one 'for the possession of real or personal property.' We do not think so. The question of the possession of the interest in controversy was not an issue in the case. Under the joint operating agreement entered into between the parties, the appellee, Lyle Cashion Company, was in complete possession and control of the wells involved and the operation thereof, and such right of possession and control was not challenged by this suit, nor was it brought into question. The possession and control under the joint operating agreement existed at the time of the institution of this suit and at all times pertinent, and it was not sought by the suit to disturb the same, nor could the outcome of the suit have disturbed such possession under the joint operating agreement.

It is clear from the prayer of the original bill that the suit was not one for the possession of real or personal property. The appellants prayed for a decree declaring their interest in the wells and requiring Cashion to render an accounting for the proceeds derived from the production of the wells. In short, the appellants claimed an interest in the wells and sought to have the court declare that interest and render an accounting for the proceeds of production. The court declined to enforce or establish the interest asserted by the appellants and dismissed their original bill. The question of possession was not involved. The case of Bancroft v. Martin, 144 Miss. 384, 109 So. 859, 111 So. 434, 435, was a suit for the specific performance of a claimed contract for the sale of land. The trial court dismissed the suit and this action was affirmed on appeal to the Supreme Court. The appellee in that case sought to have the Supreme Court allow five percent damages on the value of the land involved. In denying the claim for the five percent damages, the Court said: 'The decree of the court below did not enforce or establish any lien or charge or claim upon or any...