Shaw & Estes v. Texas Consol. Oils

• Citation: 299 S.W.2d 307
• Decision Date: 24 January 1957
• Docket Number: No. 13055,13055
• Parties: SHAW & ESTATE et al., Appellants, v. TEXAS CONSOLIDATED OILS, a Corporation, Appellee.
• Court: Texas Court of Appeals

Page 307

299 S.W.2d 307

SHAW & ESTATE et al., Appellants, v. TEXAS CONSOLIDATED OILS, a Corporation, Appellee.

No. 13055.

Court of Civil Appeals of Texas, Galveston.

Jan. 24, 1957.

On Motions for Rehearing Feb. 21, 1957.

Lee Shipp, Dallas, for appellants.

Jacque DeCoux and DeCoux & DeCoux, Houston; Garvin H. Germany, Jr., J. Edward Johnson and Renfro & Johnson, Dallas, for appellee.

GANNON, Justice.

Plaintiff, Texas Consolidated Oils, a corporation, brought this suit against Shaw & Estes, alleged to be a partnership composed a Gaylord Shaw and Burnett Estes, as well as against Burnett Estate individually, alleging itself to be a cotenant with the defendants, in who certain oil and gas leasehold estates in Harris County, Texas, to wit: The Levy 'A' Lease and the Rothschild Lease; and with the defendant partnership Shaw & Estes in an additional lease in the same county known as the Tuffly Estate 'A' Lease.

The petition sets out that since about April 1, 1951, plaintiff has operated said leases, incurring reasonable, proper and necessary expenses by reason thereof, which costs have inured to the benefit of defendants as its cotenants, not from the production of oil alone but as well because such production has operated to preserve the leasehold estates of all cotenants alike. It is further alleged that until shortly before the filing of the suit all the oil run from said leases has gone to the pipeline for the account of the several owners of the undivided interests in the leasehold estates, and that the proceeds of said pipeline sales have been distributed without any deduction for operating expenses to the respective owners of the undivided interests in said leasehold estates; that nevertheless defendants, each and both, while retaining said proceeds, have refused to account to or to reimburse plaintiff for their proper proportion and pro rata of expenses incurred in operating, and thereby preserving, said leases. No development costs are involved.

Plaintiff sought judgment against defendants for their respective proportions of such operating expenses or lifting costs so incurred by it, and asked for the establishment and foreclosure of equitable liens against the undivided interests of defendants in the leasehold estates, respectively, as security to plaintiff for reimbursement. Plaintiff had personal judgment against defendants, respectively, as for debt, with the establishment against the leasehold estates of its cotenants respectively of 'cotenant's lien for expenses of operation and maintenance,' which order of sale, etc. Defendants appeal.

The first point of error is that the court erred in rendering judgment at the second term of court after the expiration of the term at which the case was tried and submitted. We overrule the point.

Trial was commenced in the 129th District Court at the January-June 1955 term. This term ended with the Sunday next before the first Monday in July of 1955. The following term commenced with the first Monday of July, 1955, and ended with the Sunday next before the first Monday in January, 1956, when another January-June, 1956, term commenced. The following chronological statement reflecting the proceedings in the cause from the commencement of trial to the rendition of judgment, as set out in appellee's brief, is unchallenged and is adopted by us as a fair reflection of the record:

'(1) The cause came on for trial at the January-June Term (1955) and on June 13, 1955, before the Court, a jury being waived.

'(2) The oral testimony before the Court was concluded at 4:30 on June 14, 1955.

'(3) It was stipulated that Appellee would produce an audit report and that same would be accepted by Appellants as proof of the expenditures actually made against the lease involved herein.

'(4) The Court heard and approved such stipulation and continued the trial for further proceedings and directed the parties to submit written briefs within two weeks with reply briefs to follow within one week thereafter.

'(5) Said audit report was furnished and submitted to the Court on June 28, 1955, and a supplemental certificate in connection therewith was submitted on August 16, 1955, which was in the July-December 1955 Term.

'(6) The Court received Appellee's original brief on July 1, 1955, and Appellants' original brief on July 16, 1955, and Appellee's reply brief on August 24, 1955, and thereafter proceeded with consideration of said case. Thus, it is seen that a portion of the evidence and a part of the briefs were submitted to the Court during the July-December 1955 Term.

'(7) The Court announced on February 29, 1956, (during the January-June 1956 Term) that such cause was set for further hearing on March 28, 1956, at 10:00 A.M., and notified all parties to that effect, and upon such date (and without objection) the parties hereto appeared through their respective counsel and presented oral arguments. On the 28th day of March, 1956, the Court directed the submission of further written briefs and Appellee submitted, and the Court received, its supplemental brief of April 6, 1956, and the Appellants submitted, and the Court received, their brief in reply thereto on April 17, 1956.

'(8) Subsequent to the above sequence of events judgment was rendered and announced by the Court on May 2, 1956, and during the January-June 1956 Term.'

Defendants rely upon the recent case of Coats v. Garrett, Tex.Civ.App., 283 S.W.2d 289, which opinion follows British General Fire Insurance Co. v. Ripy, Tex.Com.App., 130 Tex. 101, 106 S.W.2d 1047. The Ripy case expressly approves the holding of this Court in Rouff v. Boyd, Tex.Civ.App., 16 S.W.2d 403, 407, announcing the law as follows: 'No rule of law is more firmly established in the jurisprudence of this state than that courts can only exercise their jurisdiction to hear and determine personal or property rights at the time and place fixed by the statute or rules of court authorized by the statutes. We do not think the rendition of the judgment in this case on December 18, 1928, during the third term of the court after the term at which the case was heard and submitted, was authorized by any statute or court rule. The only statute under which such authority is claimed by respondents is subdivision 28 of article 2092, Revised Statutes 1925, fixing rules of practice for district courts in counties having two or more district courts with only civil jurisdiction, the terms of which continue three months or longer. * * * This statute only authorizes the court to proceed with the trial and hearing of a case at the next term of the court when the term of court at which the trial began ends before the completion of the trial or hearing.'

When Rouff v. Boyd was decided in 1929, Rule 66 for the district and county courts was in effect. That rule read:

"A cause that has been submitted for trial to the judge on the law and facts shall be determined and judgment rendered therein during the term at which it has been submitted, and at least two days before the end of the term, if it has been tried and submitted one day before that time, unless it is continued after such submission for trial, by the consent of the parties placed on the record, and in such event a statement of facts and bills of exception shall be prepared and filed upon a request in writing by either party."

Rule 66, of course, has been repealed and we find no express counterpart of it in the present court rules, but we do find the substantial counterpart of Art. 2092, Revised Statutes of 1925, in Rule 330(j), Texas Rules of Civil Procedure. That rule now provides: 'If a case or other matter is on trial or in the process of hearing when the term of court expires, such trial, hearing or other matter may be proceeded with at the next term of the court * * *.' When we consider present Rule 330(j) laid against its historical background, namely the special practice Act, old Rule 66 for the government of trials in the district and county courts, and Art. 1925, R.S.1925, providing for extension of terms of court, we are convinced that under present Rule 330 (j) the law is the same as announced in the Ripy case, namely, that generally speaking the rendition or entry of judgment subsequent to the expiration of the next term after the trial begins is, the absence of an entry of an order extending the term, without authority of law.

But we do not think the law as announced in the cited cases applies to this record. Here, we have circumstances which did not obtain in any of the cases to which we have referred, namely, what was in effect the resubmission of the case by the implied consent of the parties at the January-June 1956 term. Here, at the second succeeding term after that at which the trial commenced, the parties reappeared pursuant to notice by the court and presented oral arguments based upon the evidence submitted at the two 1955 terms of the court. Additionally, pursuant to direction of the court and without objection, all parties submitted written briefs during the January-June 1956 term. The effect of these oral arguments and of the written briefs of the parties was, of course, to invoke the jurisdiction of the court at the 1956 term to render judgment in favor of the parties, respectively, so invoking the jurisdiction. This, we think, amounted to a resubmission of the case by agreement on the basis of the evidence theretofore developed and, as it were, to the commencement of a new trial at the January-June 1956 term. We are convinced, anything in Rule 330(j) to the contrary notwithstanding, that in contemplation of law, at least, under the particular facts of this record a new and a different trial was commenced at the January-June 1956 term. Judgment having been rendered at that term at the invocation of the parties, we hardly see how any of them are in position to assert want of jurisdiction in the court to render the judgment appealed from. Had all of the evidence which was...