Probst v. Bearman
| Decision Date | 24 June 1919 |
| Docket Number | 10456. |
| Citation | 183 P. 886,76 Okla. 71,1919 OK 188 |
| Parties | PROBST et al. v. BEARMAN. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Sept. 23, 1919.
Syllabus by the Court.
In an action for cancellation of an oil and gas lease, where an accounting for the oil and gas produced during the litigation is ancillary to the main cause of action, parties brought into the action by supplemental bill for the purpose of the accounting are not entitled to trial by jury.
Where a court of equity assumes jurisdiction of the controversy on some ground other than the accounting involved, it will, as a general rule, where an accounting is necessary for full settlement of the controversy, proceed to decree it, and will settle the whole controversy, even to the extent of adjudicating matters of purely legal cognizance.
Where oil and gas is purchased pending a suit to cancel the lease under which same is produced, by parties having knowledge of such litigation and of the purpose of the adverse party to insist upon his rights, the statute of limitations does not begin to run against the right to compel such purchasers to account for the oil and gas until the final determination of the suit canceling the lease.
In an action for cancellation of an oil and gas lease, and where an accounting of oil and gas produced pending the litigation is ancillary, all parties producing and purchasing such oil and gas with notice may be joined in a supplemental bill for accounting.
"Conversion" is any distinct act or dominion wrongfully exerted over another's personal property in denial of or inconsistent with his rights therein.
[Ed Note.-For other definitions, see Words and Phrases, First and Second Series, Conversion.]
Where one who converts property sells it to another who has knowledge of the conversion, the buyer and seller may be sued jointly for the conversion.
The cost of improvements and operations incurred by the holder of an oil and gas lease, purchased pendente lite and with actual knowledge of the adverse claim, and of the purpose of such party to insist upon his rights and to obtain redress for the invasion of such rights, will not be deducted, when requiring such holder to account to the successful adverse party for oil and gas produced and sold from the premises.
Error from District Court, Tulsa County; Owen Owen, Judge.
Suit for injunction by the Dux Oil & Gas Company against one Wilson, with intervention by J. A. Bearman, and judgment for the Dux Oil & Gas Company, which on Bearman's appeal was reversed and remanded, with direction to enter judgment for Bearman and for an accounting, whereupon he filed a supplemental petition, bringing in George C. Probst and others for an accounting, etc. Judgment for Bearman, and Probst and others bring error. Affirmed.
Ralph E. Campbell, of Tulsa, for plaintiffs in error Cosden & Co. and Cosden Pipe Line Co.
C. R Thurwell, of Tulsa, for plaintiff in error Misener.
Blake & Rosenstein, of Tulsa, for plaintiffs in error Probst, Morrison, and Ernsberger.
W. A. Sipe and J. P. O'Meara, both of Tulsa, for defendant in error.
This action was commenced by the Dux Oil & Gas Company against Wilson, praying an injunction to restrain interference with its exploring and developing certain oil lands under an oil and gas lease executed by Wilson. Bearman intervened in the action, praying a cancellation of the lease under which the oil company claimed, and for injunction restraining interference with his development of the premises under a subsequent lease executed by Wilson. From a judgment in favor of the Oil Company, Bearman appealed to this court, and secured a reversal of the judgment. The cause was remanded, with directions to enter judgment for Bearman for the oil and gas produced on the premises pending litigation, and for an accounting for that purpose. 166 P. 199. Bearman then filed a supplemental petition, bringing the plaintiffs in error into the action, demanding an accounting of the oil and gas taken from the premises, and for judgment for the value of same. From a judgment in his favor, plaintiffs in error prosecute this appeal.
To reverse the judgment it is urged the court erred: (1) In denying a trial to a jury; (2) in denying the plea of limitations; (3) in overruling demurrers for misjoinder of causes of action; (4) in rendering judgment for the highest market value of the oil at any time between the taking and the time of trial; (5) in denying plaintiff in error Misener the right to remove improvements made on the premises in the development and operation pending the litigation.
Plaintiffs in error claim as assignees and purchasers from the Dux Oil & Gas Company, and contend, in so far as the action concerns them, it is one for the recovery of money, and they were entitled to a trial by jury under the provisions of section 4993, R. L. 1910.
The purpose of the action was the cancellation of an oil and gas lease and for injunctional relief, of purely equitable cognizance. Accounting for the oil and gas produced during the litigation is ancillary to the main cause of action. To succeed it was necessary for Bearman to cancel the lease under which the Dux Oil & Gas Company was developing the premises. When he succeeded in cancelling that lease, his right to the oil and gas produced on the premises during the litigation followed as a natural sequence. It was not an action for the recovery of money within the meaning of the statute, and the parties required to account for the oil and gas taken from the premises were not entitled to a trial by jury. Hogan et al. v. Leeper, 37 Okl. 655, 133 P. 190, 47 L. R. A. (N. S.) 475; Success Realty Co. v. Trowbridge, 50 Okl. 402, 150 P. 898; Brush v. Boyer, 104 Kan. 168, 178 P. 445.
Where a court of equity assumes jurisdiction of an controversy on some ground other than the accounting involved, it will, as a general rule, where an accounting is necessary to a full settlement of the controversy, proceed to decree it, and will settle the whole controversy, even to the extent of adjudicating matters of purely legal cognizance. Guaranteed St. Bank v. D'Yarnett, 169 P. 639; 1 C.J. 616; Murray v. Speed, 54 Okl. 31, 153 P. 181.
Pending the litigation, the Cosden Companies and the Arrow Gasoline Company...
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