Wells v. Shriver

• Decision Date: 05 April 1921
• Docket Number: 10431.
• Parties: WELLS v. SHRIVER.
• Court: Oklahoma Supreme Court

197 P. 460

81 Okla. 108, 1921 OK 122

WELLS v. SHRIVER.

No. 10431.

Supreme Court of Oklahoma

April 5, 1921

Syllabus by the Court.

Under the Oklahoma Code of Civil Procedure there can be but one judgment in an action.

A "judgment" is the final determination of the rights of the parties in an action. To constitute a judgment under the Code, it must judicially determine all of the issues raised by the pleadings except such as are waived or abandoned on the trial of the case.

A judgment must not only determine the rights of the parties in an action, but must conclude all further inquiry into the issues joined by the pleadings and leave nothing further to be done except carry it into execution.

Every direction of a court or judge made or entered in writing and not included in a judgment is an order. Section 5316, Revised Laws 1910.

To constitute a "final order" in an action, it must be an order affecting a substantial right in the action, and the effect of such order is to determine the action and prevent a judgment.

The party aggrieved, by any order made by the court or judge thereof in an action before judgment and which is not a final order, may save his exceptions and have such order reviewed by this court when brought up by proper proceedings in error to review the judgment rendered by the trial court notwithstanding more than six months have elapsed since the making of such order, provided the petition in error is filed in this court within the statutory period of time to give this court jurisdiction to review the judgment.

The statute of frauds was enacted for the purpose of preventing fraud and not for the purpose of promoting frauds or aiding a person in the perpetration of frauds.

Where a partnership exists between two persons who are undertaking a joint venture to procure an oil and gas lease and develop the same and a third person joins in the venture with them, under an agreement that he is to have a specified interest in the lease and division of the profits, knowing the relationship which exists between the two, he thereby becomes a partner with each of the original partners in the joint venture.

The evidence examined, and held to be sufficient to sustain the judgment of the trial court.

The testimony in this case disclosed that a partnership was created by Wells, Shriver, and Bumbaugh for a joint venture in procuring and operating oil and gas leases on two 40-acre tracts of land. In consideration of Wells being let in to the partnership, he agreed to furnish the money and hold the title in trust as a part of his security.

Where S. and B. as partners found an oil and gas lease that could be purchased for a stipulated price and have bargained with the holder of such lease for its purchase, then agree to let W. in on the deal in consideration of W. putting up the money to pay for the lease and developing it, W. to carry S. and B for a one-third interest each, S. and B. permit the title to be taken in W.'s name, then without compensation or salary B. devotes his entire time and experience to the development of the lease, S. furnishing him money to live on and pay his expenses while he is so operating the lease for the benefit of all three, and W., the holder of the legal title, attempts to deny the rights of either of the other parties, and repudiates the confidence reposed in him, is such a fraud as will operate to convert W. into a trustee ex maleficio.

Additional Syllabus by Editorial Staff.

Where one of three partners took charge of an oil and gas lease constituting the partnership venture and operated it without salary, another partner furnishing the money to pay expenses, and the third partner held the legal title for the other partners who were to have a one-third interest each but subsequently refused to give them any interest, held, that a trust in such third partner arose by operation of law.

Appeal from District Court, Tulsa County; Conn Linn, Judge.

Action by Marcus W. Shriver against N.D. Wells and others to recover a one-third interest in certain oil and gas leases and for an accounting of the profits. Judgment for plaintiff, and defendant named appeals. Affirmed.

William F. Tucker and Hulette F. Aby, both of Tulsa, for plaintiff in error.

Carroll, Mason & Honnold and C. H. Rosenstein, all of Tulsa, for defendant in error.

MILLER J.

This action was commenced on October 15, 1913, by Marcus W. Shriver as plaintiff, against N.D. Wells and George I. Bumbaugh as defendants, in the district court of Tulsa county, to recover an undivided one-third interest in certain oil and gas leases with the wells and equipment thereon and for an accounting of the profits derived therefrom. Said oil and gas leases were set out in the plaintiff's petition and covered four separate 40-acre tracts of land. The case was tried to the court without a jury, judgment was rendered in favor of the plaintiff, Shriver, and against defendant Wells, as to two of the 40-acre tracts. There was not any adjudication as against defendant Bumbaugh, and it appears that he was not a necessary party, as he did not assert any rights or claims as against the plaintiff and he is not a party to this appeal.

Defendant Wells appears in this court as plaintiff in error, and Shriver, plaintiff in the court below, appears here as defendant in error.

At the very outset, we are confronted with the question of the jurisdiction of this court, raised by defendant in error, and this question must necessarily have our first consideration.

Defendant in error contends two judgments have been rendered in this case, and then says:

"This court has not jurisdiction to review upon this appeal any errors occurring upon the trial of this case before the district court of Tulsa county, in 1914, for two reasons:

First. Because the judgment rendered on May 26, 1914, was a final judgment, and no appeal was prosecuted from said judgment to this court within the time provided by statute for perfecting appeals from a judgment of a district court of this state; the present appeal having been filed in this court subsequent to the judgment entered upon the report of the referee, which said judgment was entered on July 20, 1918, more than four years after the original judgment upon the merits of this action.

Second. For the reason that no motion for a new trial setting up the errors occurring in the trial had in 1914 was filed until the 20th day of July, 1918, and in order to give this court jurisdiction to review any errors occurring upon the trial of this action had in 1914, it was and is necessary that a motion for a new trial should have been filed in the trial court, calling the attention of the trial court to said errors within three days after the rendition of said judgment and this, regardless of whether or not the judgment entered on May 26, 1914, was, as we contend, a final judgment, or whether the same was as defendant assumes a mere interlocutory decree."

An examination reveals an apparent irreconcilable conflict of authorities on what constitutes a final judgment.

In view of the innumerable times this question has been before the court, considering its importance, and as this court has not passed directly upon it, we think it should be discussed at length. In doing this, we will set out in full the different orders made by the court and upon which defendant in error relies to sustain his contentions:

"Now on this 3d day of April, 1914, the same being one of the regular judicial days for the March, 1914, term of this court, the above-entitled cause comes on for trial; the plaintiff being present in person and by his attorney, Herbert D. Mason; the defendant N.D. Wells, being present in person and by his attorneys, Aby & Tucker; and the defendant, George I. Bumbaugh, having made default in pleading and making no defense. The plaintiff and the defendant N.D. Wells announced ready for trial. * * *"

Here the journal entry recites the introduction of evidence ruling on motions, objections, and other proceedings had at the trial, then sets out the specific findings of fact made by the court, which findings sustain the conclusions reached which are as follows:

"* * * And thereupon and upon the _____ day of _____ 1914, the court pronounced and rendered its interlocutory judgment and decreed as follows:

It is ordered, adjudged and decreed that each of the parties is entitled to and has and owns a one-third interest each in the said leases and in the profits thereof accrued and to accrue; subject, however, to the right of defendant Wells to hold title to the said leases until he shall have been paid his expenditures in full; that the defendant Wells had been and is holding said leases as a partner of, and trustee for, the plaintiff and the defendant Bumbaugh as to a one-third interest each; that the defendant Wells be and is hereby enjoined from making any transfer or disposition of said property in violation of his said trust; that he execute, acknowledge and deliver to the plaintiff, upon his demand therefor when and after said expenditures shall have been paid in full, a good and sufficient instrument in writing, setting apart and transferring to him one-third interest in the said property and the proceeds therefrom; that an accounting be had before a referee, to be appointed by this court, of all receipts and disbursements had or made in connection with the acquisition and development of the said property; that the defendant Wells account to the plaintiff for, and pay over to him when and as the same accrue, a full one-third share of the profits derived from the said leases; that further order and final decree of the court await the result of the said accounting, and that the plaintiff have his costs in this suit against

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