Poth v. Roosth

• Decision Date: 28 May 1947
• Docket Number: No. A-1144.,A-1144.
• Citation: 202 S.W.2d 442
• Parties: POTH et al. v. ROOSTH et al.
• Court: Texas Supreme Court

Page 442

202 S.W.2d 442

POTH et al. v. ROOSTH et al.

No. A-1144.

Supreme Court of Texas.

May 28, 1947.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action in trespass to try title by Mrs. Josephine Poth against Sam Roosth and others, wherein the defendants filed a cross-action against the plaintiff and the Taylor Refining Company. The Taylor Refining Company filed a cross-action. A judgment in favor of Mrs. Josephine Poth and Taylor Refining Company was reversed by the Court of Civil Appeals, 198 S.W.2d 132, and Mrs. Josephine Poth and the Taylor Refining Company bring error.

Judgment of Court of Civil Appeals reversed and judgment of district court affirmed.

Boone, Boone & Davis, of Corpus Christi, for Mrs. E. W. Poth, petitioner.

Kleberg, Eckhardt, Mobley & Roberts, of Corpus Christi, and Graves & Dougherty and Ireland Graves, all of Austin, for Taylor Refining Co., petitioner.

W. Edward Lee, of Tyler, for respondents.

SMEDLEY, Justice.

This case presents questions as to the effect and the validity of a "take nothing" judgment rendered December 19, 1938, by the district court of Nueces County in a suit brought by petitioner, Mrs. Josephine Poth and her husband, E. W. Poth, now deceased, against respondents Sam Roosth, Genro Drilling Company and others, affecting a tract of land adjoining the city of Corpus Christi and described as containing 14.21 acres, more or less.

The 14.21 acre tract of land, the title to which is in controversy, is part of a larger tract that was owned and occupied by E. W. Poth and wife as their homestead on and prior to January 24, 1936. On that date Poth and wife executed and delivered to Richardson Production Company, Inc., an oil and gas lease of the 14.21 acres. Thereafter the leasehold estate was acquired by respondents Sam Roosth and A. S. Genecov, and others of the respondents or their predecessors became owners of interests therein. The first suit, referred to herein as cause No. 18202-B, in which the take nothing judgment was rendered, was filed by E. W. Poth and wife on July 16, 1938. The first five paragraphs of the petition contain the formal allegations of an action in trespass to try title, and the succeeding paragraphs contain allegations as to the execution of the oil and gas lease and as to the termination of the lease by reason of the cessation of production and the failure of the defendants to prosecute drilling operations, with a prayer for the cancellation of the lease, the removal of cloud, and for damages. The petition was twice amended, new parties defendant being made, and when the case was called for trial the second amended original petition, which will hereinafter be discussed, had been filed. The defendants Sam Roosth, Genro Drilling Company and others filed an answer which contained a plea of not guilty, a general denial, several paragraphs of defensive pleadings to defeat cancellation of the lease, and a cross action alleging the defendants' ownership of the lease and praying that the plaintiffs be enjoined from interfering with their "operation of said leasehold and premises."

When the case was called for trial the attorneys for the plaintiffs, Poth and wife, announced that they were not ready for trial because the plaintiffs had not been served with citation on the defendants' cross action, saying that they would be ready if the defendants would withdraw their cross action. The trial judge announced that the case would be tried "on the main cause of action and on the cross action too." Thereupon the attorneys for the plaintiffs left the court room and the court proceeded with the case in their absence. The defendants took a nonsuit of their cross action, offered evidence, and filed a motion for an instructed verdict, which was granted. The trial court rendered judgment that the plaintiffs "do have and recover nothing of and from the defendants as to the title and possession of the following described land." The land described in the judgment is the land in controversy herein and the same as that described in the oil and gas lease.

Poth and wife appealed from that judgment by writ of error, and while the cause was pending in the Court of Civil Appeals they negotiated with the attorneys for Roosth and the other defendants for the settlement of that cause and of a judgment that had been rendered in county court in favor of Poth against Sam Roosth and A. S. Genecov. The evidence as to the terms of the settlement made is somewhat conflicting. Petitioners insist that the agreement was that the cause pending in the Court of Civil Appeals would be dismissed, while respondents contend that the appeal was to be dismissed. Motion to dismiss was filed, moving to "dismiss the appeal" and praying that "this cause be dismissed." The order entered by the Court of Civil Appeals on April 19, 1939, granting the motion, refers to it as a motion to dismiss the writ of error, and recites that the writ of error is dismissed.

Thereafter Poth and wife continued in possession of the land, asserting ownership of the fee title subject only to the rights under the oil and gas lease, and paying taxes on the land, until Poth's death on February 2, 1941. Poth's entire estate was willed to his wife, and she continued to possess and assert ownership of the land until she sold and conveyed it to petitioner, Taylor Refining Company, on April 1, 1942, retaining a vendor's lien to secure part of the purchase money. Taylor Refining Company took possession of the land a short time thereafter and made valuable improvements on it. Respondents continued to operate the oil well on the land and Poth and his wife were paid royalties therefrom until the last monthly payment of royalty was made in October, 1940, and a final payment was made in January, 1941, from the residue of oil in the tanks. There was no further production from the lease. The respondents herein did not assert an adverse claim of title to the land until on or about October 8, 1942, and they have not at any time rendered for taxation, or paid taxes upon, the fee title or any interest in the land other than the working interest under the oil and gas lease. These facts are taken from the trial court's findings of fact, which are supported by evidence in the record.

This suit was filed by Mrs. Poth on December 31, 1941. The original petition, in its first eight paragraphs, is a formal action in trespass to try title. This is followed by further allegations which relate to the execution of the oil and gas lease, its expiration according to its terms and its termination by reason of cessation of production and of operations, with prayer for the cancellation of the lease and for damages. On October 8, 1942, respondents filed herein a cross action against petitioners, Mrs. Poth and Taylor Refining Company, alleging ownership of the land in fee simple and praying for title and possession. The case was tried on Mrs. Poth's second amended original petition, Taylor Refining Company's second amended original answer and cross action, which is in substance the same as Mrs. Poth's pleadings, the answers of the defendants and the cross action above mentioned. In her trial petition, after substantially the same allegations as those contained in her original petition, Mrs. Poth alleges in detail facts as to the institution of the former suit, cause No. 18202-B, the pleadings therein, the proceedings at the trial, the rendition of judgment, the appeal, the settlement of the controversies, and the order of dismissal entered in the Court of Civil Appeals, and other facts which have been stated briefly herein as to possession of the land, payment of royalties, etc. The petition attacks the judgment of the district court in that cause as void for the reason that the court, in the circumstances and under the pleadings, had no jurisdiction and no power with respect to the cause other than to dismiss it. It further alleges that the take nothing judgment did not have the effect of divesting the plaintiffs of the title to the land and vesting it in the defendants, because the cause of action as made by the pleadings was in fact a suit to cancel the oil and gas lease. Allegations of estoppel are made, based primarily upon the agreement of settlement made by the parties after the suit was appealed to the Court of Civil Appeals and conduct of the respondents thereafter.

The trial court rendered judgment in favor of petitioners and against respondents for title and possession of the land in controversy and decreed the termination and cancellation of the oil and gas lease. Elaborate findings of fact were made, and conclusions of law were filed, the more important of which conclusions are that the take nothing judgment rendered in cause No. 18202-B on December 19, 1938, was utterly void; that if the judgment had any validity its only legal effect was to adjudicate in the defendants the seven-eighths mineral interest under the oil and gas lease; and that the leasehold interest was terminated by cessation of operations and by abandonment long before the trial of this case. The Court of Civil Appeals reversed and rendered the trial court's judgment, holding that the effect of the take nothing judgment was to divest the plaintiffs in that suit of all title to the land and to vest the title in the defendants, that the judgment was not void, and that petitioners' attack on the judgment is barred because of failure to exercise diligence in making it. Tex.Civ.App., 198 S.W.2d 132.

The Court of Civil Appeals, for support of its ruling as to the meaning and effect of the take nothing judgment, cites Permian Oil Co. v. Smith, 129 Tex. 413, 73 S.W.2d 490, 107 S.W.2d 564, 570, 111 A.L.R. 1152. That case involved the title to a section numbered 103 and the important question before the Court was as to the effect of a judgment that had been rendered in a prior suit. The petition in the prior suit was in the statutory form of...