Neuvert v. Woodman

• Decision Date: 10 August 1959
• Docket Number: No. 41273,41273
• Parties: D. G. NEUVERT, Appellant, v. K. T. WOODMAN and D. J. Iannitti, partners d/b/a Woodman-lannitti Drilling Co., Appellees.
• Court: Kansas Supreme Court

Page 206

343 P.2d 206

185 Kan. 373

D. G. NEUVERT, Appellant, v. K. T. WOODMAN and D. J. Iannitti, partners d/b/a

Woodman-lannitti Drilling Co., Appellees.

No. 41273.

Supreme Court of Kansas.

Aug. 10, 1959.

Syllabus by the Court.

Where, under the conditions and circumstances set forth at length in the opinion, a demurrer has been sustained to a petition on the ground it fails to state a cause of action and the plaintiff thereafter and notwithstanding the former ruling files an amended petition containing allegations so similar they differ in no substantial particular as against demurrer and require the trial court to either again review and pass upon what it has already determined or ignore its previous ruling the court does not commit error in sustaining a motion to strike the amended pleading from the files. (Following Fidelity Hail Ins. Co. v. Anderson, 172 Kan. 253, 239 P.2d 830, and other decisions cited in the opinion.)

Marvin E. Thompson, Russell, argued the cause, and George W. Holland and Clifford R. Holland, Jr., Russell, were with him on the briefs for appellant.

Boyce P. Hardman, Great Bend, argued the cause, and Herbert Diets, Great Bend, was with him on the briefs for appellees.

PARKER, Chief Justice.

This is an appeal from an order striking an amended petition from the files.

The facts necessary to a proper understanding of the controversy between the parties, as well as those essential to a proper disposition of the appellate issues involved, are not in dispute and appear from the pleadings and motions, the contents of which should be set forth at length.

Plaintiff, D. G. Neuvert, commenced the action by filing a petition against defendants, K. T. Woodman and D. J. Iannitti. Omitting averments, relating to identity of the parties, legal description of real estate, and the prayer, that pleading reads:

'4. That on July 9, 1956, plaintiff was the owner of valid and subsisting oil and gas leases covering the following described lands and real estate, situate in Barton County, Kansas, to-wit: (Description omitted.)

'5. On said date, plaintiff and the defendants aforesaid, doing business as Woodman-Iannitti Drilling Co., entered into an agreement providing that plaintiff assign unto said defendants, doing business under the firm name and style as aforesaid, said leases covering all of the above described land, reserving, however, unto plaintiff as an overriding royalty a 1/16 of 7/8th of the oil and/or gas produced under said leases on the following described lands in Barton County, Kansas, to-wit: (Description omitted.), and it was further provided in said agreement that plaintiff sell and deliver unto said defendants, doing business as Woodman-Iannitti Drilling Co. all of the 5 1/2""' oil string recovered by plaintiff from the pulling of his #1 Heinze well located on (Description omitted), Russell County, Kansas.

'6. Said defendants in consideration of the assignment of said leases, by plaintiff, and the sale and delivery of said oil string, agreed to start a test well on the acreage hereinabove described, to be assigned by plaintiff, by or before sixty (60) days from July 9, 1956, to a depth sufficient to test the Arbuckle Limestone or 3625 feet, unless oil and/or gas be found above such depth in commercial quantities.

That said agreement, dated July 9, 1956, is hereto attached marked 'Exhibit A' and by this reference incorporated herein.

'7. That on July 25, plaintiff executed and delivered to said defendants assignments covering oil and gas leases held by him covering each of the above described lands and real estate to be assigned to said defendants. True and correct copies of which are hereto attached, marked ('Exhibits B to H,' inclusive) and by this reference incorporated herein; that plaintiff performed each and every of the obligations on his part to be performed under the terms of said contract, but that defendants have failed, neglected and refused to drill said test well therein provided for and that by reason thereof, this plaintiff has been damaged in the sum Sixteen Thousand Dollars ($16,000.00), being the reasonable and actual costs for the drilling of a test well as provided in said contract to a depth of 3625 feet.'

So far as here pertinent Exhibit 'A' of the petition, the agreement entered into by the parties on July 9, 1956, reads:

'This agreement entered into by Woodman-Iannitti Drilling Co. party of the first part and D. S. Neuvert party of the second part.

'The party of the first part agrees to drill a test well somewhere on the following acreage (Here follows legal description of six tracts of land) all in Barton County, Kansas, and the party of the second part will assign to the party of the first part the leases on all of the above described acreage which party of the second part now has and leases are to be free and clear of any indebtedness and override and are to be the full interest, except party of the second part will have 1/16 of 7/8th override on the following acreage (Here follows description of three of the above mentioned tracts of land).

'It is also agreed that party of the second part also agrees to sell to party of the first part all of the 5 1/2"' oil string the party of the second part recovers from the pulling of his #1 Heinze well which is located in * * * Russell County, Kansas, at the rate of $1.50 per foot and footage to be determined by actual tally. It is also understood that party of second part agrees to if in the event the pipe recovered doesn't tally at least 2500 to wait until he or party of first part obtains the shortage before starting the test well above mentioned.

'The party of the 1st part agrees to start a test well on the acreage as described by or before 60 days from date except for reasons beyond their control.

'It is also agreed that party of the second part will have abstract cleared and present to party of first part cleared.

'It is agreed that party of the first part will hold the above mentioned oil string in stock until the above test is drilled. After the above test is drilled and if the pipe is not used in it the party of the first part is free to do with it what ever they choose.

'This agreement becomes binding on party of the first part when the party of the second part delivering of above mentioned pipe to the party of first parts yard at Hoisington.'

Exhibits 'B' to 'H', inclusive, of the petition, are oil and gas lease assignments covering the acreage listed in the second paragraph of the agreement. These were alike in form and each contained the following provision:

'Notwithstanding anything herein contained this assignment shall become null and void and of no force and effect unless the assignee herein shall commence or cause to be commenced a test well for oil and/or gas upon the Northeast Quarter (NE 1/4) of Section Ten (10), Township Eighteen (18), Range Fifteen (15), Barton County, Kansas, within Sixty (60) days from and after the date of this assignment.' (Emphasis supplied.)

In due course defendants demurred to the petition on the ground it failed to state facts sufficient to constitute a cause of action. After a hearing this demurrer was sustained under an order allowing plaintiff ten days in which to amend.

Instead of appealing from the ruling on the demurrer plaintiff filed an amended petition within the time granted by the trial court. This pleading, in all respects, was identical in form and language with the original petition except for the addition of two sentences. These sentences, which were inserted following the semicolon and before the word 'that' as they appear in Paragraph Seven of the original petition, heretofore quoted, read:

'That thereafter and prior to the expiration of 60 days from July 9, 1956, it was orally agreed by and between plaintiff and K. T. Woodman, acting for and on behalf of said defendants, and each of them, that said defendants despite any restriction as to the location of said drill site of the test well, to be drilled in accordance with the terms of the contract of July 9, 1956, appearing in said assignments, dated July 25, 1956, could drill said test well on any portion of the acreage and leases so assigned by plaintiff to defendants. That defendants entered into negotiations with various persons, whose names are unknown to plaintiff, except that defendants negotiated with a firm, association or corporation known as Brown-Fortier to invest in the test well to be drilled somewhere on the acreage assigned by plaintiff, and that defendants conducted seismograph operations upon said acreage so assigned by said plaintiff.'

Following the filing of the amended petition, in manner and form as indicated, defendants filed a motion to strike that pleading from the files. Such motion, as filed and presented in the court below, is set forth in the abstract. Since, as will presently appear, it discloses the reasons on which that tribunal based its subsequent ruling, and there is some quibble between the parties on that subject, we deem it necessary to quote pertinent portions of the motion. They read:

'Come now the defendants, * * * and moves the court for an order striking from the files the amended petition filed herein for the reason that the matters therein alleged have been fully and finally adjudicated by the ruling of the court made on May 24, 1957, wherein the court sustained the demurrer filed by the defendants to the plaintiff's petition, and the matter is now res judicata.

'In support of this motion, the defendants state as follows:

'The demurrer previously sustained by the court was predicated upon the ground that the petition failed to state a cause of action by reason of the forfeiture provision in the assignments attached to the petition as exhibits. The petition and the amended petition are identical except that in the amended petition the plaintiff has added to paragraph seven the following language: (Here follows the allegations, heretofore quoted,...