Wells v. Shriver
Decision Date | 05 April 1921 |
Docket Number | Case Number: 10431 |
Citation | 1921 OK 122,197 P. 460,81 Okla. 108 |
Parties | WELLS v. SHRIVER. |
Court | Oklahoma Supreme Court |
¶0 1. Judgment--Finality. Under the Oklahoma Code of Civil Procedure there can be but one judgment in an action.
2. Same--Definition--Matters Concluded. 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 rained by the pleadings except such as are waived or abandoned on the trial of the case.
3. Same. 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 to carry it into execution.
4. Motions--"Orders." 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 of 1910.
5. Appeal and Error--"Final Order." 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.
6. Same--Time for Appeal--Right to Re-view--Orders Not Final. 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.
7. Frauds, Statute of--Purpose of Statute. 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.
8. Partnership--Joint Adventures--Rights of Parties--Oil Lease. 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 anti 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.
9. Same--Trust Relation of Partner Holding Property--Accounting--Judgment--Evidence. The evidence examined, and held to be sufficient to sustain the judgment of the trial court.
10. Same. 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.
11. Same--Partner as Trustee Ex Maleficio. Where S. and B., as partners, find an oil and gas lease that can he purchased for a stipulated price and bargain 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, and 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 yhile 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, this is such a fraud as will operate to convert W. into a trustee ex maleficio.
William F. Tucker and Hulette F. Aby, for plaintiff in error.
Carroll, Mason & Honnold and C. H. Rosenstein, for defendant in error.
¶1 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 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:
¶2 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. 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:
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... ... Okla. Const. Art. 7 4 ; Wells v. Shriver, 1921 OK 122, 197 P. 460, 478479. We need not address those circumstances where either the Legislature has authority to exclude a ... ...
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Billy v. Le Flore Cnty. Gas & Elec. Co.
... ... Wells v. Shriver, 81 Okla. 108, 197 P. 460; 10 R. C. L. 599, et seq.; Hebblethwaite v. Flint, 83 A.D. 163, 82 N.Y.S. 471; Pickens v. Daniels (W. Va.) 58 W ... ...
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Chi., R. I. & P. Ry. Co. v. Warren
... ... therein from which an appeal is allowed, such an order is not appealable." 14 A very exhaustive discussion of final orders may be found in Wells v. Shriver, 81 Okla. 108, 197 P. 460. See, also, Words & Phrases (2nd Ser. ) vol. 2, p. 556, defining "final order," citing White Oak Ry. Co. v ... ...
- Wells v. Shriver