Whittenburg v. State
| Decision Date | 18 May 1953 |
| Docket Number | No. 6308,6308 |
| Citation | 259 S.W.2d 270 |
| Parties | WHITTENBURG et al. v. STATE et al. |
| Court | Texas Court of Appeals |
Sanders, Scott, Saunders & Smith, Amarillo (C. J. Humphrey, Amarillo, of counsel), Adkins, Folley, Adkins, McConnell & Hankins, all of Amarillo, for appellants.
Klett, Bean & Evans, Lubbock, Paul New, Denver City, for appellees.
This suit was brought by the State of Texas, in behalf of itself, Yoakum County, and for the use and benefit of all political subdivisions whose taxes are collected by the assessor and Collector of Taxes for Yoakum County, against J. A. Whittenburg, Jr., and Roy R. Whittenburg, as trustees of the J. A. Whittenburg estate; J. A. Hedgecoke; R. G. Windsor and J. A. Whittenburg, Jr., as executors and trustees of the Nannie Mae Windsor estate; B. E. Walker, as guardian of the estate of Jake Whittenburg, non compos; and Lillie Frances Ratiff and husband, H. L. Ratliff; Annie W. Walker and husband, B. E. Walker; J. A. Whittenburg, Jr.; R. G. Windsor; Georgia Whittenburg Hawks and husband, A. W. Hawks; Roy R. Whittenburg; Mattie Pearl Morris and husband, W. Glynn Morris; Joe D. Whittenburg; S. B. Whittenburg; Bonnie W. Liston and husband, Jack D. Liston; Helen Whittenburg McCartt and husband, E. J. McCartt, Jr.; Tennessee Whittenburg Cline and husband, R. C. Cline; Sidney Atkinson and husband, H. F. Atkinson; Jewel H. Lankford and husband, Jack B. Lankford; Nona T. Mills and husband, R. D. Mills; Garland H. King and husband, Paul King and Dixie Hedgecoke Shannon and husband, Harry F. Shannon, for the recovery of delinquent taxes for the years 1942 to 1949 both inclusive, together with all penalties, interests, costs, and other charges and expenses on account of their alleged ownership of an interest in the oil, gas, and other minerals in three sections of land situated in Yoakum County, Texas.
The petition described the property sought to be taxed as being a mineral interest reserved by the defendants in two oil and gas leases executed by the defendants to the Denver Producing and Refining Company on July 20, 1937, and to designate the property sought to be taxed pleaded as follows:
'Said lease provided for the usual 1/8th part of all oil produced and saved from the premises and one-eighth of the gas sold or used, as royalties to the lessors in such lease, and in addition, said lease provided that as further consideration moving to lessors and an inducement for the execution of such lease, an additional one-fourth of the minerals in said lease was reserved to the lessors, their heirs, representatives and assigns, which additional one-fourth of the minerals should be produced by the lessee, its successors and assigns, free of cost and expense to lessors, their representatives and assigns, and delivered to the credit of lessors in the exact same manner as was provided for the delivery and credit of the one-eighth royalty in clauses four and five of such lease, until lessors, their heirs, representatives and assign should have received from the net proceeds derived from the sale of said additional one-fourth interest reserved, the sum of money equal to $1250.00 per acre, for each and every acre, in said lease, when the rights of the lessors to said additional one-fourth of the minerals should cease and terminate.'
There were two motions made by the defendants to dismiss plaintiffs' cause of action. J. A. Whittenburg, Jr. and Roy R. Whittenburg, as trustees of the J. A. Whittenburg estate, filed one of the motions to dismiss, for the reason that the attorneys representing the plaintiffs were not legally authorized and empowered to institute and prosecute the action as against them; that neither plaintiffs nor the purported attorneys had a right to seek personal judgment against the J. A. Whittenburg estate or these trustees without seeking to foreclose the alleged tax lien on the property on which plaintiffs' alleged delinquent taxes to be due and that the court did not have the necessary parties before it to foreclose said lien upon the property in question, and that they did not own the property in question and had never owned the interest in the proportion which the interest was valued.
Other defendants made a motion to dismiss plaintiff's cause of action because there had never been an assessment by the State of Texas or by Yoakum County against these defendants; that the petition did not set-forth, or purport to set-forth, what amount of money was being sought to be recovered from each of said defendants; that none of the defendants were the owners of the interest sued upon at the time this suit was filed, and that a purported assessment against George A. Whittenburg heirs would not support judgment against said defendants individually, nor did such suit give any basis for taking a personal judgment against said defendants individually and in their various capacities.
Both motions to dismiss were overruled by the court.
The case was tried to a jury. At the close of the evidence, both plaintiffs and defendants made a motion for an instructed verdict. The court granted plaintiffs motion for an instructed verdict and overruled defendants' motion, and instructed the jury to render the following verdict:
'We, the jury, find for the plaintiff, State of Texas and others, and against the defendants, J. A. Whittenburg and others.'
Upon this verdict the following judgment was rendered:
'We, the jury, find for the plaintiff, State of Texas and others, and against the defendants, J. A. Whittenburg and others.'
Such verdict was duly signed by the foreman of the jury and was received by the Court. 'The Court finds that the defendants, except the husbands of the married women, are personally liable for the taxes sued for by the State of Texas by reason of their ownership of the oil payment upon which the taxes in controversy were assessed at the time such taxes accrued, except that the defendants, Sidney Atkinson, Nona T. Mills, Dixie Hedgecoke Shannon, Jewel H. Lankford, Garland H. King and J. A. Hedgecoke are the beneficiaries of the Mattie Hedgecoke Estate, which estate was the owner of the oil payment during the year 1948 during which the taxes in controversy, insofar as said estate is concerned, were assessed, and that such defendants received from the estate more than the amount of such texes, and by reason of such facts such defendants are personally liable; and the Court further finds that the oil payment in question has paid out and therefore, there is nothing in existence upon which a lien can exist or can be foreclosed.
'It is therefore ordered, adjudged and decreed by the Court that the plaintiff, the State of Texas, for itself and in behalf of Yoakum County and the political subdivisions in said county in which the land, from which the oil payments in controversy were made, was situated and which taxes are collected by the assessor and collector of taxes for said county, do have and recover of and from the defendants as follows:
'It is further ordered, adjudged and decreed by the court that the plaintiff recover of and from the above named defendants, against whom judgment is rendered, all costs in this behalf expended, and execution may issue to enforce this judgment.
'To which action and judgment of the court, the defendants then and there in open court excepted and gave notice of appeal.
'This judgment is ordered entered this the 25 day of November, A. D., 1952.'
The Court instructed the jury to render a verdict for the plaintiffs and granted judgment for the plaintiffs, to which action of the Court defendants complained and perfected their appeal to this Court. W...
To continue reading
Request your trial
-
State v. Whittenburg
...as to the validity of the valuation and assessment of the oil payments, reversed the judgment of the trial court and remanded the cause. 259 S.W.2d 270. On July 20, 1937, J. A. Whittenburg, Jr., and Roy R. Whittenburg, executors of the estate of J. A. Whittenburg, and others of the responde......