McMullen Oil & Royalty Co. v. Lyssy

• Decision Date: 17 January 1962
• Docket Number: No. 10924,10924
• Citation: 353 S.W.2d 311
• Parties: McMULLEN OIL AND ROYALTY COMPANY, Inc., et al., appellants, v. Daniel LYSSYet al., Appellees.
• Court: Texas Court of Appeals

Page 311

353 S.W.2d 311

McMULLEN OIL AND ROYALTY COMPANY, Inc., et al., appellants, v. Daniel LYSSYet al., Appellees.

No. 10924.

Court of Civil Appeals of Texas, Austin.

Jan. 17, 1962.

Cox, Smith & Smith, San Antonio, for appellants.

Ronald Smallwood, Karnes City, for appellees.

RICHARDS, Justice.

This appeal grows out of a suit filed September 7, 1955 as Cause No. 7768, in the District Court of Wilson County, by August Lyssy and twenty-eight other plaintiffs against John H. McMullen and twenty-one other defendants to cancel nineteen deeds executed in 1929 and 1930 by plaintiffs or their predecessors in title conveying mineral interests in certain lands in Wilson County, Texas to H. J. McMullen because of alleged fraud on the part of McMullen in representing that the deeds were oil and gas leases and that unless drilling operations for the production of oil and gas was not commenced by McMullen within a period of from three to six months thereafter the leases would automatically be cancelled and the interests conveyed to McMullen would revert to the grantor plaintiffs.

On April 25, 1960, John Lyssy and wife Pauline Lyssy, who were among the plaintiffs in Cause No. 7768, conveyed all their interest in the minerals in the lands in controversy being approximately 125 acres out of the L. Manchaca III League Grant in Wilson County, Texas to their children Daniel Lyssy and others, appellees herein, and subsequently the Trial Court on August 11, 1960 entered an order of severance permitting appellees to file a new suit which was filed and docketed as Cause No. 8021 in the same court by appellees Daniel Lyssy, Edward Lyssy, Lucy Pollok et vir, Vincent Pollok, Proxie Wiatrek et vir, Thomas Wiatrek, Irene L. Pawlik, a widow and Magdalen L. Wiatrek as plaintiffs naming appellants McMullen Oil and Realty Company, Inc. and Fort Worth National Bank, Executor of the Estate of Susie McMullen Langille, deceased, as defendants. Contemporaneously with the order of severance The Trial Court entered an order in Cause No. 7768 granting the motion of plaintiffs to take a nonsuit against the defendant John H. McMullen.

The severed cause was tried before a jury on January 23, 1961 and based upon the answers of the jury to fourteen special issues the Court entered judgment for appellees and cancelled the mineral deed in controversy. Appellants filed their motion for new trial which was overruled and thereafter timely perfected this appeal. Prior to the entry of the judgment appellants filed their motion for judgment non obstante veredicto which was overruled.

Appellants based this appeal upon nine points of error committed by the Trial Court in entering the judgment cancelling the mineral deed. As their second point of error appellants urge that the judgment of the Trial Court should be reversed and rendered because appellees' cause of action for cancellation of the mineral deed in controversy was barred as a matter of law by the four year statute of limitations, Art. 5529, Vernon's Civil Statutes, since the uncontradicted evidence before the Trial Court showed that appellees had not perfected service of citation upon appellants until more than four years and five months had elapsed after Cause No. 7768 was originally filed in the District Court of Wilson County and appellees failed to introduce any evidence of diligence or a reasonable excuse for delay in obtaining or attempting to obtain service of process upon appellants during that period. In our opinion appellants' second point of error should be sustained.

In their second amended original answer appellants affirmatively pleaded, among other defenses, that the original pleadings in Cause No. 7768 were filed on September 7, 1955, that service of citation was not had upon appellants unitl February 26, 1960 and therefore the cause of action was barred by the four year statute of limitations. Appellants also raised the four year statute of limitations by special exception which was overruled by the Trial Court.

At the trial on the merits the following stipulated facts were offered in evidence, without objection, and read to the jury:

'3. That Plaintiffs' Original Petition in Cause No. 7768 in this court, styled August Lyssy, et al., v. John H. McMullen et al., was filed with the Clerk of this court on September 7, 1955.

'4. That the records in Cause No. 7768 next above described reflect that service of citation in said Cause No. 7768 was perfected upon the Defendants, McMullen Oil and Poyalty Company, Inc. and Fort Worth National Bank, Executor of the Will and Estate of Susie McMullen Langille, Deceased, on February 26, 1960, and that such records do not show that any other service of process was perfected upon such Defendants at any other time.

'5. That this Cause No. 8021 was severed from said Cause No. 7768 by order of the Court dated August 11, 1960.' (Italics supplied.)

In Texas it has long been held that the mere filing of a petition does not toll the statute of limitations since there must be a bona fide intention that process be issued and served and due diligence must be exercised in both the issuance and service of process. Adams v. Slattery, 156 Tex. 433, 295 S.W.2d 859; City of Gainesville v. Harder, 139 Tex. 155, 162 S.W.2d 93; Owen v. City of Eastland, 124 Tex. 419, 78 S.W.2d 178; Buie v. Couch, Tex.Civ.App., 126 S.W.2d 565, error ref.

The filing of the petition in Cause No. 7768 on September 7, 1955, coupled with the fact that service of citation in that cause was not perfected upon the appellants until February 26, 1960 without any showing that any service of process was attempted or perfected upon appellants at any other time, did not interrupt the statute of limitations since it was necessary for appellees to go further and show that 'due diligence' was exercised by them in securing issuance and service of process upon each of the several appellants. Adams v. Slattery, supra, 295 S.W.2d 872.

It was therefore incumbent upon appellees after the introduction in evidence of the stipulated facts concerning the date of the institution of the suit and the issuance and service of process upon appellants to show due diligence or some reasonable excuse for the delay in having such process issued and served. No evidence was introduced by appellees upon the trial to show either due diligence on their part or that they or their counsel had a reasonable excuse for the delay in the issuance and service of process upon appellants for a period of more than four years and five months. Hence there was no need for the submission to the jury of any issues on 'due diligence' or 'reasonable excuse' since such questions were conclusive against appellees as a matter of law. Ricker v. Shomaker, 81 Tex. 22, 16 S.W. 645; Austin v. Proctor, Tex.Civ.App., 291 S.W. 702, 704, no writ...