Rockhold v. Lucky Tiger Oil Co.
| Decision Date | 07 December 1927 |
| Docket Number | (No. 2919.)<SMALL><SUP>*</SUP></SMALL> |
| Citation | 4 S.W.2d 1046 |
| Parties | ROCKHOLD et al. v. LUCKY TIGER OIL CO. et al. |
| Court | Texas Court of Appeals |
Action by the Lucky Tiger Oil Company and others against Rachael J. Rockhold and others, in which defendants filed a cross-action. Judgment for plaintiffs, and defendants bring error. Reversed and remanded.
K. C. Barkley, of Houston, W. S. Parker, of Amarillo, V. R. McGinnis, of Leon, Iowa, and Cooper & Lumpkin, of Amarillo, for plaintiffs in error.
Underwood, Johnson, Dooley & Simpson, Madden, Adkins & Pipkin and Vance Huff, all of Amarillo, Tatum & Strong, of Dalhart, Williams & Martin, of Plainview, Koerner, Fahey & Young, of St. Louis, Mo., and Robert D. Hawley, of Ft. Collins, Colo., for defendants in error.
In their briefs, the parties are unable to agree as to what constitutes a correct statement of the nature and result of this suit. This is due to the fact that there is much confusion in the preparation of the transcript, and the further fact that both parties have utterly disregarded District and County Court Rules 3-13, inclusive, in the preparation of their original pleadings as well as in the amended and supplemental pleadings. Said rules provide that original pleadings shall be indorsed, so as to show their respective positions in the process of pleading, and that in filing amendments and supplements to original pleadings, they shall point out the instrument with its date sought to be amended, or the pleading to which the supplement is a reply. An amended pleading should identify the pleading for which it is a substitute, by giving the date of its filing and especially the date of the original pleading, and a failure in this particular renders it subject to a special exception. Ward v. Hinkle (Tex. Civ. App.) 252 S. W. 236; Hinkley v. Brewer (Tex. Civ. App.) 274 S. W. 227; Demetri v. McCoy (Tex. Civ. App.) 145 S. W. 293; and it is the duty of the trial judge to see that all amended pleadings give the dates and descriptions of the pleadings which they supersede. Lewis v. Alexander, 51 Tex. 578.
The failure upon the part of all the parties to observe these rules has resulted in much confusion in briefing the case and has entailed considerable extra labor upon this court in an effort to outline the issues upon which the case was tried and to make a correct statement of the nature and result of the suit. The original transcript includes several abandoned pleadings and omits the greater part of an amendment to one of them, which has subsequently been brought up by a certiorari to perfect the record.
The transcript shows that this is a case where the trial court should have ordered all parties to replead. District and County Court Rule 2; Perry v. Herbert, 8 Tex. 1; Harrell v. Houston, 66 Tex. 278, 17 S. W. 731; Dutton v. Norton, 1 White & W. Civ. Cas. Ct. App. § 360.
The suit was filed June 7, 1926, by the Lucky Tiger Oil Company against C. H. Brewer (also spelled Breuer) and his wife, Rachael J. Brewer (who was formerly Mrs. Rachael J. Wasson), and numerous other defendants, some of them alleged to be the legal representatives of these defendants, some the unknown heirs of Brewer, being children of his first wife, and others the unknown heirs of Mrs. Rachael J. Brewer by her first husband.
The cause of action, as shown by the original petition, is to remove the cloud from and quiet plaintiff's title to four sections of land in Moore county, in which plaintiff specially pleads its chain of title. The transcript also contains a pleading filed July 19, 1926, by the plaintiff in error Rachael J. Rockhold, a daughter of Mrs. Rachael J. (Wasson) Brewer, joined by numerous other children, grandchildren, and greatgrandchildren of Mrs. Brewer. This is alleged to be their answer to plaintiff's petition, and by cross-action in form of trespass to try title they sought to recover the said lands and premises from the Lucky Tiger Oil Company, H. C. Poe, Roxana Petroleum Corporation, Union Oil Company, R. M. Davis, and C. H. Brewer. This pleading consists of a general demurrer to the petition, and a plea of not guilty, and as shown by the amended transcript, brought up by a certiorari, the defendants, by cross-action in form of trespass to try title, seek to recover the land, together with $50,000 damages.
On November 23, 1926, plaintiffs in error, Mrs. Rockhold and the other heirs and legal representatives of Mrs. Rachael J. (Wasson) Brewer, filed "their second amended original answer and cross-action in lieu of their original answer and first amended answer and cross-action heretofore filed herein." This reference is the only thing in the transcript which indicates that a first amended answer and cross-action had been previously filed, and we assume that this pleading was evidently their first amended original answer and cross-action and superseded the original filed by them July 19, 1926. This amendment consists of a general demurrer, a general denial, and special denials of the facts alleged by the defendants in error that they are the owners of all the lands. The allegation is that these defendants are the owners in fee simple of an undivided half interest in the lands described in the petition. They deny that C. H. Brewer acquired the property in his own separate right and as his own separate estate, and assert that it is the community property of said Brewer and his wife, Rachael J. (Wasson) Brewer, and that the one-half interest of Mrs. Brewer, upon her death, vested in these defendants, who are her heirs at law and legal representatives. This is followed by a plea of not guilty. By a separate count, the defendants plead over against the Lucky Tiger Oil Company, H. C. Poe, its president, the Roxana Petroleum Company, the Union Oil Company, R. M. Davis of Swisher county, and C. H. Brewer of Wayne county, Iowa, in form of trespass to try title for the land involved, and to recover $50,000 damages, and pray for partition of the four sections of land and writ of restitution.
On January 24, 1927, the Lucky Tiger Oil Company, Union Oil Company, and H. C. Poe filed "this our original answer to the first amended original answer and cross-petition of the above-named defendants" — Rachael J. Rockhold et al. being the defendants referred to. The Union Oil Company and Poe having allied themselves with the Lucky Tiger Oil Company, the original plaintiff, this pleading should have been styled "plaintiffs' first supplemental petition." District and County Court Rule 3; Towne's Texas Pleading (2d Ed.) 379. This pleading consists of a general demurrer and a plea of not guilty to the cross-action of Mrs. Rockhold et al., a general denial, and by way of reply to the cross-action of the defendants, they adopt "all allegations set out in the original petition filed in this cause against the above-named defendants by the defendant in the cross-petition, the Lucky Tiger Oil Company, being plaintiff in the original suit, and without repeating the allegations contained in the original petition filed by the Lucky Tiger Oil Company, these three defendants in said cross-petition plead the same chain of title set out therein and say that the fee-simple title to the four sections of land described in said original petition and in the cross-petition of the above-named defendants is vested in the Lucky Tiger Oil Company, and these three defendants adopt said original petition as part of their answer to the cross-petition of the above-named defendants."
If this pleading is an amended original pleading, it could not adopt and incorporate by reference any of the allegations in the original petition, but such allegations should be specifically made in the amendment; the rule being that an amended pleading must be tested by its own allegations, and that no reference to abandoned pleadings can aid it. City of Aransas Pass v. Usher (Tex. Civ. App.) 191 S. W. 157; American Indemnity Co. v. Burrows Hardware Co. (Tex. Civ. App.) 191 S. W. 574; Poon v. Miller (Tex. Civ. App.) 234 S. W. 573. No exceptions were filed or urged to this pleading on this account. The pleading further alleges that Mrs. Rockhold et al. are not entitled to any interest in the four sections of land in controversy, as the heirs of Rachael J. (Wasson) Brewer and her first husband, for the reason that said land was the separate property of C. H. Brewer, who, following the death of his first wife, about the year 1902, in the state of Iowa, married Rachael J. Wasson, now deceased; that at the time Brewer married Mrs. Wasson she was wholly without property of any kind or character; that Brewer had previously acquired a large amount of property situated in the states of Iowa and North and South Dakota, all of which, according to the laws of Texas, was his separate property at the time he married Rachael J. Wasson in the State of Iowa; that after their marriage, Brewer and his then wife, Rachael J. Wasson Brewer, made a temporary visit to the Panhandle of Texas, in about the year 1906, and while here the said Brewer, with his own separate means, purchased the four sections of land involved in this suit from J. W. Crudgington, for a total consideration of $7,600, $4,000 of which was paid to Crudgington in cash by Brewer, out of his separate funds, and that the remaining $3,600 was evidenced by Brewer's assumption of notes against the land in that amount, owing by Crudgington; that in the month of August or September, 1906, Brewer paid off said notes out of his own separate property and estate owned by him prior to his marriage to Rachael J. Wasson, and out of the proceeds of a mortgage which he gave to secure a loan in 1906, upon separate property owned by him prior to the time of his marriage, which property was situated in the state of Iowa.
It is further alleged that prior to the date of their...
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American Nat. Bank of Beaumont v. Wingate, 4878
...in paragraph 3 and the special prayer for removal of the cloud seem only incidental and formal. The decision is Rockhold v. Lucky Tiger Oil Co., Tex.Civ.App., 4 S.W.2d 1046, cited by the plaintiff, is not in point. There, the plea of not guilty was not filed in answer to the petition; it wa......