New American Oil & Mining Co. v. Troyer

• Decision Date: 14 December 1905
• Docket Number: No. 20,743.,20,743.
• Citation: 166 Ind. 402,76 N.E. 253
• Court: Indiana Supreme Court
• Parties: NEW AMERICAN OIL & MINING CO. et al. v. TROYER et al.

166 Ind. 402

76 N.E. 253

NEW AMERICAN OIL & MINING CO. et al.

v.TROYER et al.

No. 20,743.

Supreme Court of Indiana.

Dec. 14, 1905.

Appeal from Circuit Court, Grant County; H. J. Paulus, Judge.

Action by Lucy M. Troyer and others against the New American Oil & Mining Company and others. From a judgment for plaintiffs, defendants appeal. Transferred from the Appellate Court (74 N. E. 37), under Burns' Ann. St. 1901, § 1337j, subd. 2. Reversed.McBride & Denny, for appellants. Dailey, Simmons & Dailey, for appellees.

HADLEY, J.

Suit by appellees to quiet title. Appellant Crown Oil Company filed a cross-complaint, claiming certain interest in the land by reason of an oil and gas lease, and asking an accounting for oil alleged to have been converted to the use of appellees. The complaint and cross-complaint were answered by general denial. Trial by the court, finding and judgment for appellees. Appellant's motions for a new trial, asked on the grounds that the decision of the court is not sustained by sufficient evidence and is contrary to law, were overruled, and in these rulings appellants claim error.

Appellees vigorously insist that the evidence is not in the record. The præcipe for the transcript directed the clerk to “prepare and certify a true, full and complete transcript of the following papers, proceedings and judgment in the above-entitled cause: plaintiff's complaint, *** separate motions for a new trial by the Crown Oil Company and the New American Oil & Mining Company, the original bill of exceptions of the Crown Oil Company, *** also all order book entries made in this cause and also including this præcipe.” The clerk certifies that the transcript contains the original bill of exceptions and the original præcipe for transcript. The original bill of exceptions containing the evidence is incorporated in the transcript, and the only question is whether it is a part of the record. The bill of exceptions containing the evidence is the only bill that had been filed, and the only paper or document permitted by statute to be incorporated in the transcript in its original form. Therefore, in receiving an order for a transcript for an appeal, and a list of the various papers, documents, and entries desired, and which could only find their way into a transcript by being copied therein, to find in the list a call for the “original bill of exceptions,” when the term original could have no significance except as a direction to the clerk to insert the original in the transcript, was sufficient to justify the clerk in construing the præcipe into an order to frame the transcript as was done. We think it should be held that the evidence is in the record. This case was tried prior to the act approved March 9, 1903 (Acts 1903, p. 340, c. 193), section 7 of which act specifically removes all such questions as that just considered.

Appellants, as assignees of Thomas McDonald, base their claim upon a certain oil and gas contract, among other things providing: “In consideration of the sum of $1.00 and the covenants and agreements hereinafter contained, Lucy M. Troyer (appellee) first party, hereby grants and conveys unto Thomas McDonald, second party, or assigns, all the oil and gas in and under the following described premises in Grant county, *** together with the exclusive right to enter thereon at all times for the purpose of drilling, or operating for oil, gas, or water. *** The above grant is made upon the following terms: Second party agrees to drill a well upon said premises within two months from this date, or thereafter pay, in advance, the first party for further delay, a quarterly rental of $20 until said well is drilled.” The other provisions of the contract are in substance the same as those involved in Lafayette Gas Co. v. Kelsey, 164 Ind. 563, 74 N. E. 7, and Consumers' Gas Co. v. Littler, 162 Ind. 320, 70 N. E. 363, and do not affect the questions involved. Prior to the commencement of this suit, no well had been drilled, and no possession of the premises had been taken for the purpose of drilling. In this, as in other contracts of its class, the purpose of the parties is the exploration for oil and gas. The landowner intends to part with, and the operator intends to acquire, no other right than the exclusive privilege of entering upon the land, and with as...