Wertzberger v. McJunkin, 25222.

CourtSupreme Court of Oklahoma
Citation43 P.2d 729,171 Okla. 528,1935 OK 448
Docket Number25222.
Decision Date16 April 1935

43 P.2d 729

171 Okla. 528, 1935 OK 448


No. 25222.

Supreme Court of Oklahoma

April 16, 1935

Syllabus by the Court.

1. One joint adventurer may sue another at law for contribution for advances without precluding a suit in equity for accounting or for dissolution of the joint adventure, and it is not necessary in such an action to join a count for the dissolution of the joint adventure.

2. One joint adventurer who advances more than his share of the money to operate or develop the joint property may in a proper case have a lien on his coadventurer's share to the extent of such overadvancements.

3. One joint adventurer may in a proper action for contribution for advances recover a personal judgment against his coadventurer, have the same decreed to be a lien upon the interest of his coadventurer in the joint property, and a foreclosure of such lien and sale thereunder ordered with directions for the application of the proceeds of such sale to the satisfaction of the personal judgment so rendered and a general execution for any deficiency remaining.

Appeal from District Court, Tulsa County; Thurman S. Hurst, Judge.

Action by Florence T. McJunkin, executrix of the estate of John L. Thompson, deceased, against D. D. Wertzberger. Judgment for plaintiff, and defendant appeals. During the pendency of the appeal, the defendant died and the case was revived in the name of Leona Jones Wertzberger, as executrix of the estate of D. D. Wertzberger, deceased.


Lashley & Rambo and Russell B. James, all of Tulsa, for plaintiff in error.

F. B. Dillard, of Tulsa, for defendant in error.


This suit was instituted by the defendant in error, Florence T. McJunkin, as executrix of the estate of John L. Thompson, deceased, plaintiff below, against D. D. Wertzberger, defendant below. From a judgment in favor of the defendant in error, this appeal was taken by D. D. Wertzberger as plaintiff in error. Subsequent to the filing of the appeal in this court, the plaintiff in error died and the cause has been revived in the name of Leona Jones Wertzberger, as executrix of the estate of D. D. Wertzberger, deceased, and she has been substituted as plaintiff in error. The parties will be referred to as plaintiff and defendant as they appeared in the court below.

The plaintiff by leave of the trial court was permitted to file two separate amendments to her original petition, and said petition, together with the amendments so permitted, [43 P.2d 730] sets up in substance the following causes of action: That John L. Thompson, plaintiff's testator, D. D. Wertzberger, and E. J. McJunkin were the joint owners of two oil and gas leases; that said leases were owned by said parties in the following proportions: John L. Thompson, a one-half undivided interest; E. J. McJunkin and D. D. Wertzberger, a one-fourth undivided interest each; that the leases were operated as a joint adventure by said parties and that no other property or business venture was included in such joint venture; that at all times subsequent to the 30th day of January, 1928, the defendant authorized the management, control, and operation of said leases to be carried on by the said John L. Thompson and his duly authorized agent, Florence T. McJunkin, during his lifetime, and that after the death of the said John L. Thompson on the 1st day of May, 1928, such management and operations were carried on by the plaintiff as the executrix of the estate of John L. Thompson, deceased, and as agent of the co-owners and with the full knowledge and consent of the defendant; that in carrying on such operations the plaintiff caused to be drilled certain wells on said leases, purchased material, and made contracts for the drilling and operating of the same; that the plaintiff paid all bills resulting from said operations and the defendant ratified the acts of the plaintiff by executing certain division orders, authorizing the running and purchasing of the oil produced from said leases, and by accepting payment for his pro rata share of the oil produced, run, and sold from said leases; that the expense incurred and paid by the plaintiff in the development of said leases was the total sum of $12,415.87, and that the defendant, as the owner of an undivided one-fourth interest in said leases and as one of the joint adventurers, is liable for one-fourth in amount of the expenses incurred in such development and operation; that the defendant has failed and refused to reimburse the plaintiff for his proportion of such expense; and that plaintiff is entitled to recover said sum from the defendant, and plaintiff attaches an itemized statement of account showing the several items comprising said expense of operation and development of said leases, duly verified.

Plaintiff further alleges that at the date on which the account sued for ends, the leases, which we assume means the joint adventure, owed no debts and that plaintiff had no property or effects in her hands belonging to the defendant and was not indebted to the defendant in any sum. Plaintiff further alleges that if in the judgment of the court the facts alleged required an accounting between the parties, that she is entitled to such an accounting.

Plaintiff further alleges that she is entitled to a lien upon the interest of the defendant in said leases for any sum found to be due her from said defendant, and prays a foreclosure of such lien.

After preliminary motions directed to formal matters, the defendant filed a pleading which he entitles a demurrer and this pleading was heard and determined by the court below and an order entered thereon sustaining the same in part and overruling it as to the remainder. The pertinent part of the order of the court below in this connection reads as follows: "It is therefore ordered, adjudged and decreed by the court that the demurrer of the defendant to plaintiff's petition as amended be and the same hereby is sustained as to that portion of the petition as amended wherein the plaintiff seeks a personal judgment against the defendant." Thereafter the defendant filed his answer in which he admitted that the ownership of the parties in the leases was correctly set out in plaintiff's petition. He specifically denied that the relationship between the owners of the leasehold was that of "mining partners," and he specifically denied the correctness of the account set out in plaintiff's petition. The defendant's answer also contained a general denial of all other matters contained in said petition and was verified by the defendant.

The issues as thus joined were referred by the trial court to a referee and the referee was directed to hear the evidence on the issues of fact and to make his report thereon, including his findings of fact. Thereafter, the referee, in obedience to the order of the court and after a hearing duly had, returned his report and findings of fact, together with a transcript of the evidence taken before him. Exceptions to this report were duly filed by the defendant. Thereafter, the case was again referred to the same referee to hear additional evidence and his authority was enlarged and he was directed to report his additional findings of fact and also his conclusions of law on the whole case. Thereafter, the referee, in obedience to the commands of the court, returned his additional and supplemental report with findings of fact and conclusions of law and a transcript of the evidence taken before him, to which report the plaintiff filed her exceptions. The [43 P.2d 731] defendant presented his motion to confirm the referee's report and a request that judgment be entered in accordance therewith. Upon a hearing of the exceptions filed by the plaintiff, the trial court again referred the matter to the referee and ordered him to make a supplemental report to the court setting out the amount due from defendant to the plaintiff, if any, by reason of expense of the management and operation of said leases. Thereafter, the referee filed his supplemental report in compliance with the order of the court, to which the defendant filed his exceptions. The plaintiff thereupon filed a motion for judgment on the several reports of the referee filed in the cause.

Thereafter, the matter came on for hearing...

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