W. B. Johnson Drilling Co. v. Lacy

• Decision Date: 27 May 1960
• Docket Number: No. 3517,3517
• Citation: 336 S.W.2d 230
• Parties: W. B. JOHNSON DRILLING COMPANY et al., Appellants, v. Robert E. LACY et ux., Appellees.
• Court: Texas Court of Appeals

Page 230

336 S.W.2d 230

W. B. JOHNSON DRILLING COMPANY et al., Appellants, v. Robert E. LACY et ux., Appellees.

No. 3517.

Court of Civil Appeals of Texas, Eastland.

May 27, 1960.

Rehearing Denied June 17, 1960.

Kenley, Sharp, Ritter & Boyland, Longview, for appellants.

J. Byron Saunders, Tyler, for appellees.

COLLINGS, Justice.

This is a plea of privilege case. Robert E. Lacy and wife, Earlene G. Lacy, brought suit in Coleman County against N. E. Loomis and W. B. Johnson, individually and as partners operating under the name of W. B. Johnson Drilling Company, Joe Mucher and the Premier Oil Refining Company, a corporation, all of Longview, in Gregg County, Texas, and against Hunt Graham, independent executor of the estate of Maner Graham, deceased, of Tyler, Smith County, Texas. The defendants filed pleas of privilege to be sued in the respective counties of their residence. Such pleas were overruled and defendants have appealed.

The following facts, circumstances and proceedings are material to a determination of the questions presented on this appeal. Plaintiffs filed their original petition on March 30, 1959, alleging that 'they were the owners' of an undivided 25/30ths interest in a unit of a mineral leasehold estate designated as the W. B. Johnson Drilling Company et al., Mrs. T. B. Daniel et al. Unit Number 1 at Novice, Coleman County, Texas. Plaintiffs alleged that as successors in interest to Echo Oil Company they became a non-operator with W. B. Johnson Drilling Company as operator, and Joe Mucher and Maner Graham, other non-operators, by virtue of a certain operating agreement of December 30, 1944; that by virtue of such ownership of said leasehold estate plaintiffs 'were entitled to and owned' an undivided 25/30ths of all oil produced therefrom, as well as all pumps, tanks and other personal property thereon. Plaintiffs further alleged that on March 29, 1957, the Internal Revenue Service, through its District Director, levied upon the above described property for delinquent taxes owed by plaintiffs and made a restraint sale to the defendant N. E. Loomis, who, in turn, sold an undivided 1/3rd interest in said 25/30ths working interest to defendant Joe Mucher and another 1/3rd interest therein to defendant W. B. Johnson; that at all times material hereto Premier Oil & Refining Company was purchasing the oil produced, saved and sold from said leasehold interest; that Premier Oil Producing Company on March 27, 1958, wrongfully released to other defendants oil accruing to plaintiffs' interest amounting to $6,920.67. Plaintiffs alleged that the sale by the Internal Revenue Service was invalid, in that, the notice of seizure and notice of sale, both dated March 12, 1957, and the certificate of sale, dated March 29, 1957, did not describe and itemize the personal property seized and sold as provided in the Internal Revenue Code. Plaintiffs alleged that the above described acts of each and all of said defendants constituted a conversion of plaintiffs' interest in said property, and sought judgment against defendants, jointly and severally, for the sum of $6,920.67, the value of the oil wrongfully converted, and the sum of $12,841.32, the reasonable 'rental value' of plaintiffs' interest in the personal property used in connection with the production of oil from said lease. Plaintiffs also alleged that such acts of the defendants in purchasing plaintiffs' interest in said unitized lease under the circumstances constituted fraud for which plaintiffs should be entitled to recover and they sought judgment against the defendants in the total amount of $19,761.99. Plaintiffs also prayed for any other and further relief to which they might show themselves to be entitled.

The defendants, N. E. Loomis, W. B. Johnson, W. B. Johnson Drilling Company, Joe Mucher, Premier Oil & Refining Company and Hunt Graham, filed pleas of privilege to be sued in Gregg and Smith Counties, the alleged places of their residence, urging under oath that no exception to exclusive venue in the county of their residence existed.

Plaintiffs timely filed their controverting affidavit to the pleas of privilege denying that no exceptions to exclusive venue in the counties of the defendants' residence existed, and claimed venue in Coleman County under the provisions of Subdivision 9 of Article 1995, V.A.T.C.S. Plaintiffs alleged that defendants had committed a trespass in Coleman County upon plaintiffs' personal property, which was attached to the realty and thereby became a part thereof; that the acts of defendants constituted a legal conversion 'of such property' in Coleman County. Plaintiffs further alleged that the cause of action set out in their petition arose out of and in connection with an interest in realty situated in Coleman County, and adopted in full all allegations set out in their original petition.

Appellants urge that the court erred in overruling their please of privilege because the record shows as a matter of law that the claims asserted by Robert E. Lacy and wife were for rental, debt or conversion of personal property and that such claims do not come within any of the exceptions to exclusive venue in the county of one's residence. Appellees question appellants' statement or classification of the nature of the cause of cause of action asserted in their pleadings. Appellees contend, in effect, that their suit was: (1) to recover an interest in real estate, specifically, their interest in an operating unit covering several oil and gas leases; (2) to recover the oil run from such operating unit accruing to plaintiffs' interest therein and (3) to recover a debt for the rental of the equipment used in producing the oil from such unit.

The only exception to Article 1995, V.A.T.C.S., specifically mentioned and relied upon in appellees' controverting affidavit was subdivision 9 which refers to a crime, offense or trespass committed in a county where suit is brought. Under this subdivision a plaintiff has the burden to both allege and prove that a crime, offense or trespass was committed by the defendants or their agents in the county where venue was laid. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91. Appellees' contention concerning personal property involved, as we understand it, is that the Director of Internal Revenue did not levy upon, or, in any event, did not make a valid sale of such personal property situated on the lease and that appellees are still the owners thereof. Their suit concerning such alleged personal property seeks only to recover rentals due on an implied rental contract. This is not a suit for conversion as contemplated by subdivision 9 of the statute and will not sustain venue in Coleman County.

Appellees also sought to recover $6,920.67, the value of oil alleged to have been converted by appellants. Actually, appellees' allegations concerning this claim are, in effect, that Premier Oil Company wrongfully paid to other appellants said sum of money, alleged to be the proceeds from the sale of oil which plaintiff...