Wertzberger v. Mcjunkin

• Decision Date: 16 April 1935
• Docket Number: Case Number: 25222
• Citation: 171 Okla. 528,1935 OK 448,43 P.2d 729
• Parties: WERTZBERGER, Ex'x. v. McJUNKIN, Ex'x.
• Court: Oklahoma Supreme Court

1935 OK 448

43 P.2d 729

171 Okla. 528

WERTZBERGER, Ex'x. v. McJUNKIN, Ex'x.

Case Number: 25222

Supreme Court of Oklahoma

Decided: April 16, 1935

Syllabus

¶0 1. Joint Adventures - One Joint Adventurer Entitled to Sue Another for Contribution for Advances Without Joining Count for Dissolution.

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. Same - Right of Joint Adventurer to Lien for Advances.

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 over-advancements.

3. Same - Enforcement of Lien Against Interest of Coadventurer.

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. Defendant having died, cause revived in the name of Leona Jones Wertzberger, executrix. Judgment for plaintiff, and defendant appeals. Affirmed.

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

F.B. Dillard, for defendant in error.

PER CURIAM:

¶1 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.

¶2 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 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. Thomson, 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.

¶3 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, she is entitled to such an accounting.

¶4 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.

¶5 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."

¶6 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.

¶7 The issues as thus joined were referred by the trial court to a referee and the referee was directeed 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 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.

¶8 Thereafter, the matter came on for hearing before the trial court on the report of the referee, the exceptions thereto filed by the defendant, and the motion of the plaintiff for Judgment. The court after consideration of the same overruled the exceptions of the defendant to such reports and entered a judgment in favor of the plaintiff and against the defendant in the sum of $3,103.96, decreed a lien in favor of plaintiff upon the defendant's one-fourth interest in said leases and the personal property belonging thereto, and directed that the same be foreclosed and said property sold "subject to the approval of the Secretary of the Interior," to satisfy the Judgment rendered in favor of the plaintiff and the costs of the suit, and further ordered that any balance over after the satisfaction of said judgment and costs be paid to the defendant, and that if the amount derived from the sale was insufficient to satisfy plaintiff's judgment, together with interest and costs, that execution issue against the defendant for the remainder unpaid. The defendant filed his motion for new trial within due time, the same was by the court overruled, and the defendant prosecutes this appeal.

¶9 The defendant sets up eleven separate assignments of error in his petition in error, but reduces them to two propositions which he presents in his briefs. The propositions so presented are: First. If the relation between the parties was that of tenants in common, the action must fail because of the fact that no contract between the parties was there alleged or proved. Second. If the relation between the...