Woolley v. Shaw

• Decision Date: 23 February 1943
• Docket Number: Case Number: 31061
• Citation: 1943 OK 55,136 P.2d 398,192 Okla. 107
• Parties: WOOLLEY et al. v. SHAW, Dist. Judge.
• Court: Oklahoma Supreme Court

1943 OK 55

136 P.2d 398

192 Okla. 107

WOOLLEY et al. v. SHAW, Dist. Judge.

Case Number: 31061

Supreme Court of Oklahoma

Decided: February 23, 1943

Syllabus

¶0 1. COURTS--Exclusive jurisdiction of court first acquiring jurisdiction of subject matter.

As between two courts having concurrent jurisdiction of subject matter the court first acquiring jurisdiction will retain jurisdiction to the exclusion of the other.

2. SAME--Each of two courts in different counties permitted to retain assumed jurisdiction of different portion of subject matter located in one county.

In an original proceeding wherein a writ of prohibition is sought to direct a court to desist from the exercise of jurisdiction over subject matter located in another county on the plea that the court of the county wherein the subject matter is located had previously assumed jurisdiction; and it appears that the local court assumed jurisdiction of only a portion of the subject matter and the other court then assumed jurisdiction of the other portion of the subject matter: Held, each court will be permitted to retain the jurisdiction assumed and each should respect the jurisdiction of the other and refrain from interfering therewith.

3. PARTNERSHIP--JOINT ADVENTURES--Venue of transitory action for accounting not affected by fact that part of assets is land located in other counties.

A bill in equity, filed by one member of an alleged partnership or joint adventure against other members thereof, for a declaration of the partnership or joint adventure and for an accounting, is a transitory action, the venue of which is governed by section 117, O. S. 1931, that is, it may be brought where one or more of the defendants may be served with summons, and summons may issue to other counties for service on other defendants, and the fact that some of the assets of the partnership in joint venture is real estate located in other counties than the one where the action is brought does not alter the rule, the relief as between the partners as to the real estate being incidental to the equitable relief relating to the determination of the partnership issues.

4. SAME--COURTS--Action in T. county for accounting as to mineral interest in land located in P. county--Court in P. county permitted to retain jurisdiction of party claiming lien on portion of land.

Where an action is filed in T. county by one against others to establish the existence of a partnership or coadventure as between them and to adjust their rights with respect to mineral interests in real estate located in P. county, and a third party who claims a lien on certain of the real estate is made party defendant but it appears that the district court of P. county has already assumed jurisdiction of the particular tract of land, held: The court of P. county will be permitted to retain jurisdiction of the lien claiming party and the other court will be prohibited from assuming jurisdiction of such lien claiming party.

Original proceedings for a writ of prohibition by W. W. Woolley and Ed Highfill against Oras A. Shaw, Judge of the District Court of Tulsa County. Denied in part and granted in part.

Scott Hendon, of Shawnee, for petitioners.

Disney, Wheeler, Raynolds & Wheeler, of Tulsa, for respondent.

Tom C. Wyatt, of Shawnee, for District Court of Pottawatomie County and its Receiver.

BAYLESS, J.

¶1 This is an original proceeding in this court wherein W. W. Woolley and Ed Highfill petitioned for a writ of prohibition directing the Hon. Oras A. Shaw, judge of the district court in and for Tulsa county, to desist from further proceedings or the exercise of further jurisdiction in relation to the matters set out in the petition.

¶2 It is alleged generally that an action was already pending in the district court of Pottawatomie county, Okla., involving the subject matter attempted to be litigated in the action filed in Tulsa county, at the time the later action was filed. We think a more detailed statement of the allegations in the petition for writ of prohibition and response thereto will be helpful at this point.

¶3 May 12, 1942, action No. 19013 was commenced in district court of Pottawatomie county by C. L. Jenkins against Woolley and Highfill, seeking to foreclose a lien on the northwest of the northeast and the northwest of the southeast of 28-8-4, and on Varner well No. 1 and Peter's well No. 1, these last not being located by legal description; and for the appointment of a receiver and other equitable relief.

¶4 May 16, 1942, Adam Butler intervened in action No. 19013, claiming to own three-sixteenths of the seveneights working interest in northwest of the northeast of 28-8-4 and seeking to have a receiver appointed for the thirteen-sixteenths interest owned by Woolley and Highfill in order that their interest might be charged with the expenses of certain developments and his three-sixteenths interest be absolved.

¶5 May 18, 1942, Woolley and Highfill filed a response to the petition of Jenkins and the plea of intervention of Butler insofar as those pleadings sought the appointment of a receiver.

¶6 May 19, 1942, an order was made continuing the hearing upon the applications for the appointment of a receiver until June 4, 1942.

¶7 May 21, 1942, Woolley and Highfill settled with Jenkins and Jenkins dismissed his cause of action against them with prejudice.

¶8 May 22, 1942, Woolley and Highfill filed an answer to Jenkins' petition (although that petition had been dismissed) and a cross-petition against Butler. The land described in this cross-petition is the northwest of the northeast of 28-8-4. In this cross-petition they admit that three-sixteenths of the seven-eights working interest is in Butler's name, but they assert that John Catlett is the true owner thereof; they alleged that Catlett should be made a party defendant; they allege that they have expended certain money in drilling a well on this property and that Catlett's threesixteenths interest is legally liable for a portion thereof which Catlett and Butler refused to pay and for which Woolley and Highfill are legally entitled to have reimbursement. They ask to have a receiver appointed to protect their interest in that respect. They also seek other relief with respect to this particular 40-acre tract.

¶9 May 23, 1942, an order was entered making Catlett a party defendant and service of process was thereafter accepted for Catlett and no question of his being a party to action No. 19013 is presented.

¶10 May 29, 1942, Woolley and Highfill caused notice to be given of the hearing on June 4th of their application for the appointment of a receiver in action No. 19013.

¶11 June 2, 1942, action No. 70902 was filed in the district court of Tulsa county with T. C. Iglehart as plaintiff and Woolley, Highfill, W. P. Baze, Jr., and Mid-Continent Petroleum Company as defendants. The oil and gas interests described were said to cover 760 acres in sections 21 and 28 of 8-4, Pottawatomie county. Descriptions are not specific in some instances. For instance, it is alleged simply that the Varner A lease contains 40 acres in the northeast of section 28. It is to be supposed that this is the same as the northwest of the northeast of 28-8-4, heretofore described in action No. 19013 in Pottawatomie county, although there is nothing in the pleadings before us to definitely so establish. The descriptions are indefinite but are followed by general allegations that more definite and specific descriptions are not given because the descriptions are well known to all parties involved. Four causes of action were set out in this petition, but causes 3 and 4 were stricken and we need not consider them. In cause of action No. I it was alleged in substance that Iglehart, a geologist, obtained information with respect to prospective oil production on the lands involved and gave this information to Woolley for the purpose of enabling Woolley to take leases in the two sections with the understanding that Baze would furnish the money and that the leases thus taken should be owned by these parties in agreed portions. It is then alleged that Woolley took these leases in his own name, using Iglehart's information and Baze's money as expenses, and has refused to recognize the interest of Iglehart or Baze therein. Other appropriate allegations are made from all of which Iglehart seeks to have established a coadventure between himself, Woolley, and Baze, to have their respective partnership or coadventure interests established and set out to each of them and to have an accounting. In the second cause of action Iglehart alleged that Woolley and Highfill procured from Mid-Continent Petroleum Company an advance of $10,000 to be charged against the runs from thirteen-sixteenths interest claimed by Woolley and Highfill and that Mid-Continent has or will claim lien against Varner lease to secure this advance and in this respect plaintiff's interests have been jeopardized and prejudiced. Based upon these and other appropriate allegations plaintiff seeks to have Mid-Continent Petroleum Company account to him for any sum which it holds, and a decree that any lien which it claims be junior and inferior to the interest of the plaintiff. At this point we notice that the only prayer for appointment of receiver is contained in the fourth cause of action, which all of the parties recognize as having been dismissed.

¶12 If the Varner A lease described above in action No. 70902 is the same land as the northwest of the northeast described in action No. 19013, then these two causes of action conflict at this point only as to that 40 acres.

¶13 June 2, 1942, summons was issued in action No. 70902 and was returned showing service on Woolley and MidContinent Petroleum Company. From allegations appearing elsewhere, we are given to understand that this service of summons on Mid-Continent Petroleum Company was quashed and that service was not perfected on this company until sometime in August, 1942.

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