Pacific Mid-Continent Corporation v. Tunstill

• Decision Date: 06 March 1942
• Docket Number: No. 14338.,14338.
• Citation: 159 S.W.2d 908
• Parties: PACIFIC MID-CONTINENT CORPORATION v. TUNSTILL.
• Court: Texas Court of Appeals

159 S.W.2d 908

PACIFIC MID-CONTINENT CORPORATION v. TUNSTILL.

No. 14338.

Court of Civil Appeals of Texas. Fort Worth.

March 6, 1942.

Appeal from District Court, Ninety-Sixth District, Tarrant County; A. J. Power, Judge.

Suit by W. A. Tunstill against Pacific Mid-Continent Corporation to compel specific performance of a written contract and for other relief. From an order granting a temporary injunction, the defendant appeals.

Affirmed.

Phillips, Trammell, Estes, Edwards & Orn and Kenneth H. Jones, all of Fort Worth, for appellant.

Richard Owens, of Fort Worth, for appellee.

McDONALD, Chief Justice.

This is an appeal from an order granting a temporary injunction.

The plaintiff, W. A. Tunstill, sued the defendants, Pacific Mid-Continent Corporation, a corporation, and L. W. Frankley, the latter being described in plaintiff's pleadings as president of said corporation. Plaintiff's petition contains three counts; the first appearing to set out a claim for damages for conspiracy by said defendants to secure damages from plaintiff, the nature of which it is not necessary to discuss here; the second appearing to be somewhat in the nature of a suit to compel specific performance of a certain written contract; and the third appearing to be a suit to recover damages for loss of sale value of certain leases and royalties belonging to plaintiff.

In said second count it is alleged, in effect, that one E. B. Busby and the defendant Pacific Mid-Continent Corporation entered into a written contract, granting Busby the right to purchase the casing in an oil well being drilled on certain lands owned by plaintiff Tunstill, under oil and gas lease to said defendant corporation, in the event said corporation should decide to abandon the well before obtaining production, and that plaintiff has acquired the rights owned by Busby under such contract; that defendants have failed and refused to allow plaintiff to purchase such casing in the ground; that defendants are threatening to, and intend to, abandon and plug the well, and dispose of the casing, and thus place it beyond the power of defendants to carry out said contract, and that such action, if carried out, will irreparably damage said well and plaintiff; that defendants are both residents of the State of California, and that the defendant Mid-Continent Corporation, although having a permit to do business in Texas, is threatening to, and intends to, withdraw from Texas in the near future and to cease doing business in Texas. The count further alleges that unless defendants are restrained from plugging the well and disposing of the casing without giving plaintiff an opportunity to purchase the casing, the value of the well and the casing will be destroyed, and that plaintiff will have no adequate remedy at law because the only property of value belonging to defendants within this state is such casing, and after such casing is disposed of by defendants, the plaintiff would not be able to collect from defendants any judgment that he might obtain against them. Plaintiff offers to pay for the casing such amount as may be found to be the actual value of said casing, either by arbitration, or by the court.

Said petition, duly verified by affidavit of the plaintiff, was filed in the District Court of Tarrant County on June 19, 1941, at which time the judge of said court endorsed thereon his fiat setting the prayer for a temporary injunction for hearing on July 12th. The defendant Frankley, who was served only with a non-resident notice in the State of California, does not appear from the transcript to have made any answer or appearance in the case. The defendant Pacific Mid-Continent Corporation filed a plea of privilege, on July 11th, seeking to remove the case to Reeves County, alleged in said plea to be the county where it had its principal office and place of business.

The transcript before us does not contain the controverting plea filed by plaintiff, but from a motion filed in this court by the appellant, which will be discussed later, it appears that the trial court later entered an order sustaining the plea of privilege, in which it is recited that the controverting plea was considered. From the entire record before us it appears that the plaintiff did file a controverting plea.

The order of events seems to have been as follows: (1) Suit was filed on June 19th. (2) The plea of privilege was filed on July 11th. (3) Pacific Mid-Continent filed an answer to the prayer for temporary injunction on July 18th, the answer stating that it was filed subject to the plea of privilege, and only after the court had announced that he would hear the injunction matter before passing upon the plea of privilege. (4) The temporary injunction was issued on July 18th, restraining Pacific Mid-Continent Corporation from removing or disposing of the casing pending further orders of the court or a trial upon the merits. (5) Plaintiff filed a plea controverting the plea of privilege. (6) Defendant Pacific Mid-Continent Corporation perfected its appeal from the temporary injunction order by filing an appeal bond on August 6th. (7) The trial court sustained the plea of privilege on December 20, 1941.

We further know, from matters coming before us in another proceeding, that plaintiff Tunstill undertook to appeal from the order sustaining the plea of privilege, but failed to file his transcript and statement of facts within the time required by Rule 385 of the new rules of procedure.

Appellant, the Pacific Mid-Continent Corporation, relies upon four points for reversal, which will be mentioned and discussed in the order they appear in its brief.

1. Appellant asserts that the trial court had no jurisdiction to issue the temporary injunction after appellant filed its plea of privilege, citing such cases as Craig v. Pittman & Harrison Co., Tex.Com.App., 250 S.W. 667; Brooks v. Wichita Mill & Elevator Co., Tex.Civ.App., 211 S.W. 288; Galbraith v. Bishop, Tex.Com.App., 287 S. W. 1087; and also the cases of Shell Petroleum Corporation v. Grays, 122 Tex. 491, 62 S.W.2d 113; and Ledger Co. v. Tweedy, 5 Cir., 69 F.2d 198.

With the exception of the two cases last mentioned, the cases cited by appellant all involve attempts of the trial court to render judgment upon the merits without passing upon the plea of privilege. In the opinions in those cases will be found remarks to the effect that the trial court loses jurisdiction, after the filing of the plea of privilege and until it is controverted, to render any judgment except to transfer the case. We have no quarrel with the decisions in such cases, but are of opinion that they are not in point upon the question before us.

A temporary injunction "is merely a provisional remedy allowed by the court before the trial of the case on the merits for the sole purpose of preserving the subject matter of the controversy as it existed at the time the suit was instituted. In other words, a temporary injunction merely preserves the status quo until final hearing. * * *" 24 Tex.Jur. 19.

It is issued at a time when the trial court does not yet know what may be the final outcome of the suit, or which party may ultimately recover. And he may not yet know the proper venue of the case. If he may issue the temporary injunction before he knows with certainty that the plaintiff is entitled to the relief he seeks, surely he may issue the injunction without having to wait until he knows with certainty where the venue lies. If a controversy over venue may deprive the court of authority to preserve the status quo until final hearing, then the whole purpose of the law permitting the issuance of temporary injunction may be defeated. All that a defendant would have to do in any case to escape the restraining influence of the court would be to file a plea of privilege. In many cases he could complete the damage sought to be prevented before the court could pass upon the venue question. In the present case, for some reason not reflected by the record before us, hearing on the venue question was delayed from July until December. To describe the situation thus presented is to illustrate its necessities. It is no answer to say that the plaintiff could obtain the required relief by filing suit in the county having venue. The question of venue is often a disputed...