Wright v. Mathis

• Decision Date: 14 March 1931
• Docket Number: No. 12436.,12436.
• Citation: Wright v. Mathis, 41 S.W.2d 250 (Tex. App. 1931)
• Parties: WRIGHT et al. v. MATHIS et al.
• Court: Texas Court of Appeals

41 S.W.2d 250

WRIGHT et al. v. MATHIS et al.

No. 12436.

Court of Civil Appeals of Texas. Fort Worth.

March 14, 1931.

Rehearing Denied May 30, 1931.

Appeal from District Court, Wichita County; W. N. Stokes, Special Judge.

Suit by Robert Mathis, for himself and as assignee of R. M. Long and others, against Roy F. Wright and others, in which Rose Campbell and others intervened. From the judgment, Roy F. Wright and others appeal.

Judgment reformed and judgment rendered in accordance with reformation.

Bonner-Bonner & Childress and J. E. Winegart, all of Wichita Falls, for appellants.

Harry Bunnenberg, of Wichita Falls, and C. P. Engelking, of Electra, for appellees.

CONNER, C. J.

This suit was originally instituted by Robert Mathis, for himself and as assignee of R. M. Long, J. A. Howard, J. M. Bradshaw, A. B. Long, and E. H. Kilgroe, upon accounts aggregating $819 for daily wages performed by the named parties upon a described oil and gas lease in Wichita county, and to secure which Mathis sought to establish and foreclose a laborer's lien upon the lease in question. As instituted, the suit was against Roy F. Wright, Panhandle Oil & Refining Company, Morris Persky, U. S. Machine Shop, Inc., Halliburton Oil Well Cementing Company, Roy Foster, J. R. Leath, R. E. Leath, C. V. Derden, and W. J. Kelly. The parties named as defendants and who are now parties to this appeal appeared either by answer or plea of intervention. Rose Campbell intervened, claiming an undivided 1/32 interest in the oil lease. The Panhandle Oil & Refining Company set up a claim for $4,000, with interest and attorneys' fees, due upon a mortgage executed by Roy F. Wright, the owner of the lease, prior, as will later appear, to the inception of any of the liens involved in this appeal. It also claims an additional amount of $300 due upon a note, with interest and attorneys' fees, plus $1,200 as the expense of putting a newly drilled well on the pump, and another item of $1,733.13 of expense in the production of oil, all sums advanced and requests being made under the terms of an agreement with Roy F. Wright at the time the $4,000 note and mortgage was given. Morris J. Persky also intervened, setting up an account for material furnished, aggregating $1,226.26, to secure which he also claimed a lien. The record further discloses the names of numerous other parties who had performed labor on the lease in question, but who had executed what is termed a "subordinating agreement" with the Panhandle Oil & Refining Company, by the terms of which they agreed that their claims might be subordinated to the claims of the said company. None of the persons here referred to are parties to this appeal.

Upon the trial, which was before the court without a jury, the court entered a judgment in favor of the Panhandle Oil & Refining Company for the amount found to be due upon the $4,000 note and the $300 note and declared them to be superior to all other liens. The account of Morris Persky for $1,226.25 with the lien claimed by him was also allowed and adjudged, but this lien was declared subject to the prior liens of the Panhandle Oil & Refining Company by virtue of the subrogation agreement. The court further adjudged in favor of the plaintiff Robert Mathis for the aggregate sum of $819 with the claimed laborer's lien foreclosed, and declared said lien to be inferior only to the $4,000, $300, and $1,200 liens of the Panhandle Oil & Refining Company. Next judgment was rendered for the Panhandle Oil & Refining Company for the cost of operating the lease from March 1, 1929, to December 21, 1929, in the sum of $1,733.13; the court next found that Rose Campbell had no interest in said oil lease and entered judgment denying her any relief.

The judgment directed that the lease be sold and the proceeds thereof, as well as the proceeds of the oil that had been produced during the time involved, be applied first to the extinguishment of the Panhandle Oil & Refining Company's first lien of $4,000 with its accumulated interest and attorneys' fees of $367.95; next to the extinguishment of the Panhandle Oil & Refining Company's $1,200 lien, with interest and attorneys fees, aggregating the sum of $1,400; next to the payment of the claim of Robert Mathis for the sum of $819; next to the payment of Morris Persky's lien of $626.25; and next and last to the payment of the Panhandle Oil & Refining Company's equitable lien of $1,733.13.

From the judgment so entered, writs of error to this court have been sued out by the Panhandle Oil & Refining Company, Roy F. Wright, Rose Campbell, and her husband, Ed. Campbell, and the Halliburton Oil Well & Cement Company. The parties last named having severally presented briefs, we will first briefly dispose of the questions presented by Rose Campbell and the Halliburton Oil Well Cement Company. Both claims were denied by the court, and error is assigned to the judgment in these respects. We conclude that the judgment against Rose Campbell cannot be disturbed. She claims an undivided 1/32 interest in the lease, and it is contended that the undisputed evidence shows that she was the owner of that undivided interest. It is undisputed in the evidence that at the inception of the transactions involved the legal title to the oil lease in question was in Roy F. Wright; that Roy F. Wright was a nonresident, living in Chicago, and gave to his brother-in-law, D. D. Moninger, power of attorney, vesting in him full and absolute authority to take possession of, manage, and operate the lease in all respects as fully as could be done by Wright himself. It seems from Moninger's testimony that an undivided 1/32 interest in the lease had been issued to one J. J. Beauregard, of Wichita Falls, which was later canceled, and at no time during the period in question has he made any claim to it, or claimed any part of the proceeds of the oil produced.

Martin C. Koebel testified that he was representing Mrs. Campbell, among others; that Mrs. Campbell was a married woman whose husband's name was Edward. Jouette Bonner testified, among other things, that he had filed the pleadings in behalf of Rose Campbell and husband; that Mr. Koebel was an attorney from Chicago and in attendance upon the court: that he did not know when he first heard of the claim of defendant Rose Campbell, but it was some time between August, 1928, and the date of the trial; that he received his information through correspondence with Mr. Koebel, which he declined to produce; that he had never received any direct request from Rose Campbell or her husband to appear in the suit; that "I know what kind of a claim she claims in this property. It is an assignment to an interest in it, 1/32nd interest. I knew that before a moment ago when Mr. Koebel stated what he thought it was. It is an assignment to an oil and gas lease. I can't say positively I know where Rose Campbell lives, but I think she lives in Chicago. I got that information through or from Mr. Koebel."

We find no transfer or other evidence of title in Rose Campbell other than that indicated by the testimony of Mr. Koebel and Mr. Bonner, and we conclude that that evidence is not sufficient to authorize a reversal of the judgment against Rose Campbell and her husband. If in fact she had an assignment, no excuse is offered for it not having been produced; all that Mr. Bonner seems to have known about her claim was information received through Martin Koebel, and Mr. Koebel in testifying as a witness at no time stated that he had ever seen or known of a conveyance of any kind sufficient to divest the original legal title of Roy F. Wright and invest the same in Rose Campbell. The judgment of the court, finding that this 1/32 interest was not in Rose Campbell, but in Roy F. Wright, must, therefore, be upheld.

The Halliburton claim was a duly verified account for four days cementing, beginning January 2, 1929, aggregating $675. The evidence wholly fails to show that the proper notice of this account was given or the proper record made thereof to establish in the company a lien as claimed, and, while it does not appear clear to us why the court might not have rendered a judgment in favor of the cement company as against Roy F. Wright for the $675, no complaint of a failure in this respect seems to have been made, and the court's judgment denying the account will also be sustained.

We are thus brought to the concluding controversy affecting the Panhandle Oil & Refining Company and Robert Mathis. It will be recalled that Robert Mathis was not a party to the subordinating agreement, and that he, hence, at no time has waived his right, if one he has, to priority over the liens of the Panhandle Oil & Refining Company. It is contended in his behalf that his account began prior to the acquisition of right in the Panhandle Oil & Refining Company. While this appears to be true from the statement of facts, yet it further appears that that account was in all respects fully paid prior to the 2nd day of November, 1928, nearly a month after the Panhandle Oil & Refining Company had taken over the lease, and that the account for labor, aggregating $819, accrued on and after November 2, 1928. Without doubt, therefore, the Panhandle Oil & Refining Company's mortgage lien for $4,000, interest and attorneys' fees, was prior in point of right to that of Robert Mathis, and we so find.

It is contended in behalf of the Panhandle Oil & Refining Company that Robert Mathis failed to...