Hunt Production Co. v. Burrage

104 S.W.2d 84, 1937 Tex. App. LEXIS 534

• Court: Court of Appeals of Texas
• Decided: March 6, 1937
• Docket: No. 12400.
• Status: Published

Opinions

LOONEY, Justice.

In order that the matter under consideration may appear in its proper setting, the following statement is made: During the year 1925, C. M. Joiner owned certain oil and gas leases in Rusk county, Tex. He divided the acreage into three groups or syndicates, sold and issued to purchasers certain certificates, each evidencing an undivided interest in the acreage composing the syndicate against which the certificate was issued. On October 27, 1930, C. R. Adkins and other certificate holders instituted suit in the Forty-Fourth judicial district court 'of Dallas county against Joiner, seeking the establishment of their respective titles to undivided interests in ■the syndicates, as evidenced by their certificates, for an accounting, etc., and praying for the appointment of a receiver to take charge of the properties and administer same under the orders of court. Answering the suit, Joiner filed a cross-action and also prayed for the appointment of a receiver. Accordingly, on October 31, 1930, the court appointed Ernest H. Ten-nant receiver, who qualified and took possession of all Joiner leasehold properties, including the 500 acres involved in the present controversy. DeBogory v. Chapman (Tex.Civ.App.) 75 S.W.(2d) 186. Richard W. Burrage purchased and held a certificate issued by Joiner against syndicate No. 3, composed largely of the 500-acre tract here involved, and on April 7, 1931, filed his plea of intervention in the receivership suit, seeking to have his title established to an undivided 2-acre interest in the 500-acre tract, as evidenced by the certificate, and his plea of intervention was referred to the master in chancery. While the claim of Bur'rage was pending, H. L. Hunt, individually and as trustee, filed a motion in the original suit, alleging that they were sole owners of the 500 acres, and prayed that same be dismissed from the receivership. Burrage was not a party to this proceeding, nor did he know or have notice of its pendency prior to April 18, 1931, the date of the order of court dismissing the 500-acre tract from the receivership. The order dismissing the land from the receivership contains the following, to wit: “ * * * the right of possession thereto shall revert to and vest in the various owners thereof as their interests might appear, and said owners of said property shall be entitled to receive any and all oil taken from said land, now in storage tanks, and all oil and proceeds of oil run from said property since March 31, 1931, said dismissal being without prejudice to the rights of the various owners and/or claimants to said property, as among themselves or with other parties.”

Hunt, individually and as trustee, was a party to the original suit; Burrage became a party later by his plea of intervention. After the 500-acre tract was dismissed from the receivership, the master in chancery, after a hearing on Burrage’s plea of intervention, filed his report, finding that Burrage was owner of an undivided 2-acre interest in the 500-acre tract. This report being approved, the court, on April 4, 1932, rendered judgment in favor of Burrage, establishing his title to the 2-acre interest. While the record fails to disclose that Hunt was served with notice of the hearing by the court on the master’s report, we think it is disclosed with reasonable certainty that Hunt knew of Burrage’s claim and plea of intervention. The testimony of Harry B. Harter, employee of Hunt and Hunt Production Company, having charge of their office and office files, testified in substance that Mr. Hunt fully understood matters pertaining to the' receivership and was conversant therewith. Tom C. Clark, master in chancery, who held the hearing on Burrage’s plea of intervention and approved his claim to a 2-acre undivided interest in the 500-acre tract, testified, in sub stance, that at the time he knew H. L. Hunt, individually and as trustee, was interested in the matter; that notice of the hearing was advertised in newspapers in Dallas, Dallas county, Henderson, in Rusk county, and Tyler in Smith county, and personal notices of the hearing were addressed to all interested' parties; the witness testifying that it was his custom to notify all interested parties of hearings to be had on claims pending before him. From this testimony we are of opinion, and so conclude, that Mr. Hunt knew of the pendency of Burrage’s plea of intervention, and had notice of the hearing thereon by the master.

On May 1, 1932, subsequent to the rendition of judgment in favor of Burrage, Hunt and others organized and procured a charter for Hunt Production Company, and thereafter Hunt conveyed the 500-acre tract to the company, of which he personally owned four-fifths and as trustee held one-fifth, and received in lieu approximately four-fifths of the stock of the company for himself, and one-fifth in his capacity as trustee.

On May 25, 1932 (after the above-recited transactions), Blunt, individually and as trustee, filed in the receivership suit a pleading in the nature of a bill of review, praying that the judgment of April 4, 1932, establishing Burrage’s claim to a 2-acre undivided interest in the 500 acres, be set aside. On trial of the bill of review, the court, on June 10, 1933, rendered judgment against Hunt individually and as trustee, denying the relief sought, reciting that: “The court further finds that, after the granting and entering of judgment in favor of Richard W. Burrage, intervenor, H. L. Hunt, individually and as trustee, caused ,to be filed herein his motion to set aside said judgment and hold the same for naught, to which motion filed, the claimant, Richard W. Burrage, filed his answer, and thereupon, all parties re-introduced on May 6, 1933, all evidence heard before the Master in Chancery, as well as additional oral testimony and documentary evidence, and the court, after hearing and considering all pleadings herein, and after hearing and considering all evidence adduced upon hearings on said motion and answers, and after reviewing briefs filed by counsel for all parties herein, is of the opinion that the relief sought by the said H. L. Hunt, individually and. as trustee, should, in all respects, be denied, arid that the judgment entered by this court on April 4, 1932, in favor of the intervenor, Richard W. Burrage, should, in all respects, stand in full force and effect * * *.”

On refusal by the court to set aside the judgment in favor of Burrage, Hunt appealed, individually and as -trustee; no other interested party complained of the judgment.

We dismissed the appeal on the' idea that as Hunt, individually and as trustee, had parted with title to said leasehold (having conveyed same to the corporation), he was not an aggrieved party and had no right to an appeal. Hunt v. Burrage (Tex.Civ. App.) 84 S.W.(2d) 1098. In due time, the Supreme Court dismissed an application for writ by Hunt, thus the judgment in favor of Burrage against Hunt, individually and as trustee, became final and, under the facts disclosed, we think, was also binding upon the Hunt Production Company. The appeal by Hunt, ’as just stated, was on a cost bond, and while same was pending Burrage filed a motion in the original receivership suit, requesting the enforcement of his judgment, to which proceeding he made Hunt, individually and as trustee, also Hunt Production Company, parties— that is, they were served with notice of the motion. Burrage based his right to have the judgment enforced on the ground that the same had not been superseded (at that time the supersedeas bond had not been filed), alleging that he was entitled to his proportionate share of oil runs from the wells -on the 500-acre leasehold, which had been denied him by Hunt; wherefore, he prayed the court to resume possession of the land through the receiver theretofore appointed, and to cause the receiver to take into his possession the oil runs from the land, and pay petitioner his proportionate part thereof, this being the specific method adopted by Burrage to secure enforcement of the judgment. To this motion Hunt, individually and as trustee, also Hunt Production Company, filed pleas of privilege to be sued in Smith, the county of their residence, contending that the motion, in effect, was a new and independent suit. Burrage duly controverted these pleas, contending that the motion was not subject to pleas of privilege, for the reason that the court rendering judgment was the only proper jurisdiction for its enforcement. These pleas being overruled, an appeal was prosecuted to this court, which we dismissed for the reason that the filing .of the supersedeas bond (on the appeal from the order denying Hunt a review of the judgment in favor of Burrage) had the effect of destroying the motion filed for the enforcement of the judgment, thus leaving nothing upon which a plea of privilege could be based. Hunt v. Burrage (Tex.Civ.App.) 95 S.W. (2d) 202.

After all these proceedings became final, Hunt Production Company on November 16, 1935, instituted suit against Burrage in form of trespass to try title in the district court of Rusk county, seeking recovery of the 500-acre leasehold (although as disclosed by the record, Burrage had never asserted, and was not then asserting, title to any part of the 500 acres, save and except an undivided 2-acré interest therein). After being cited to answer the trespass to try title suit, Burrage, on December 9, 1935, filed a second motion in the receivership suit, seeking therein, as in his first motion, the enforcement of his judgment, to which Hunt individually and as trustee, and Hunt Production Company, were cited; praying therein that Hunt Production Company be enjoined from prosecuting the trespass to try title suit (being cause No. 11846 on the docket of the district court of Rusk county, Tex.). The application for injunction was granted, enjoining the - company from further prosecuting the suit (subject to future orders of court), from which the company appealed to this court, thus presenting for review the order of court granting the injunction.

In stating the nature and result of the question .under review, we have taken the essential facts from the record before us, but in stating the original proceedings and the setting of the present controversy, we have drawn from the records of other appeals arising out of the original receivership suit, which, in our opinion, we were authorized to do. Griffith v. Tipps (Tex. Civ.App.) 69 S.W. (2d) 846, 849, and authorities cited.

A contention that runs through the discussion is that, as neither Hunt nor Hunt Production Company had his or its day in court, the judgment in favor of Burrage was not binding on either. To this we cannot agree. Hunt, individually and as trustee, had his day in court on the hearing of the issues presented in his bill of review, and Hunt Production Company (the creature of Hunt and those he represented as trustee), having been organized and becoming purchaser of the land from Hunt during the pendency of the intervention by Burrage and after he had obtained judgment, stands precisely in the shoes of Hunt. The provisions of article. 7391, R.S., are in point, reading: “Any final judgment rendered in any action for the recovery of real estate shall be conclusive as to the title or right of possession established in such action upon the party against whom it is recovered, and upon all persons claiming from, through or under such party, by title arising after the commencement of such action.”

That a court is charged with the duty and clothed with the power and exclusive jurisdiction to enforce its own judgments is axiomatic; and that it may issue all necessary process and employ suitable methods, legal or equitable, to accomplish that end, is undoubted. Article 2217, R.S., provides that “The court shall cause its judgments and decrees to be carried into execution.” Section 8 of article 5 of the Constitution reads: “ * * * and said court [district] and the judges thereof, shall have power to issue writs of habeas corpus, mandamus, injunction and certiorari, and all writs necessary to enforce their jurisdiction.” To the same effect, see article 1914, R.S. Suits and proceedings in other courts may be enjoined when the prosecution of same will delay, obstruct, or interfere with the proper enforcement of a judgment. Chapman v. DeBogory (Tex.Civ.App.) 83 S.W. (2d) 447, and authorities cited. In Ebner v. Nall (Tex.Civ.App.) 95 S.W. (2d) 1004, the plaintiff sought to enjoin the prosecution of an independent action, seeking the recovery of lands theretofore, in another action adjudged to plaintiff. The court held that the suit was vexatious and oppressive, and that its prosecution should be enjoined. It is also competent, in a proper case, for the court to appoint a receiver as a means of properly enforcing its judgment (Shulte v. Hoffman, 18 Tex. 678), and in such a proceeding, the validity of the original cause of action upon which the judgment sought to be enforced was based, cannot be questioned, as a means of frustrating or obstructing the enforcement of the judgment. City of Sherman v. Langham, 92 Tex. 13, 18, 40 S.W. 140, 42 S.W. 961, 39 L.R.A. 258. Even in cases where, after sale of property under foreclosure (plaintiff being, the purchaser), the defendant refused to yield possession, the court, in vindication of its jurisdiction and to render the judgment effective, will issue a writ of assistance to place the purchaser in possession. Voigtlander v. Brotze, 59 Tex. 286. Thus, it seems that courts, in order to effectually enforce their judgments, will issue such process and employ the means suited to the particular situation.

So we conclude that, if the motion or petition filed below by Burrage constitutes an effort on his part to have the court enforce and render effective its judgment, the writ of injunction prohibiting Hunt Production Company from prosecuting the suit pending in the district court of Rusk county (subject to future orders) being ancillary, was authorized and proper, either with or without the giving of bond as a condition precedent to the issuance of the temporary writ of injunction, the statute (article 4649 R.S.) not'being applicable to the situation. Neill v. Johnson (Tex.Civ.App.) 234 S.W. 147, 150.

On the other hand, if the proceeding, in essence and legal effect, constitutes and is a separate and independent action based upon the judgment, the injunction should be dissolved; because, in the first place, no bond was either required or given as a condition precedent to the issuance of the writ, as required by article 4649, R.S. [White v. Perkins (Tex.Civ.App.) 65 S.W. (2d) 423; Johnson v. McMahan (Tex.Civ. App.) 40 S.W. (2d) 920; Rogers Ranch Co. v. Darwin (Tex.Civ.App.) 89 S.W.(2d) 828]; and, in the second place, even if the writ to stay proceedings in the trespass to try title suit, pending in the District Court of „ Rusk County was properly granted, it should have been made returnable to that court, the only court having jurisdiction to try the case. Article 4649, R.S.; Switzer v. Smith (Tex.Com.App.) 300 S.W. 31, 68 A.L.R. 377.

So, reverting to the original question, that is, was the proceeding begun by Burrage simply an effort to have the court enforce its judgment, or was it the institution of an independent action based upon the judgment? In determining such a question, the Supreme Court, in Milam County Oil Mill Co. v. Bass, 106 Tex. 260, 163 S.W. 577, 579, said: “The proper test of the question therefore is, not whether the suit recognizes or repudiates the effect of the judgment, since that does not necessarily involve the jurisdiction of the court, but whether it amounts to an interference with its due enforcement and therefore invades a jurisdiction it is forbidden to trench upon.” In applying this test, each case must be determined on its own peculiar facts and circumstances. The judgment under consideration was not rendered under usual or ordinary circumstances; the suit was not by one individual against another, in which judgment for a specific interest in land was récovered, but being one of many owners of fractional undivided interests in a large leasehold acreage in the hands of a receiver being administered for the benefit of certificate owners, Bur-rage was entitled, not only to the confirmation of his undivided interest in the land, but also to a proportionate share of the oil runs therefrom. As shown before, the 500-acre tract in which Burrage established an undivided interest' was dismissed from the receivership at the instance of Hunt and others on an allegation, to the effect that they owned the entire interest in the acreage, although at that time Bur-rage — who was not a party to nor did he have prior notice of the proceeding that resulted in the release of the property from the receivership — owned an undivided interest upon which.he intervened, that subsequently matured into a judgment. We think it obvious that, if that situation had been brought to the court’s attention, the property would not have been discharged from the receivership, without some suitable provision being made for the protection of Burrage’s interest. From the inception of the receivership, October 31, 1930, to April 18, 1931 (the date of the order releasing the 500 acres from the custody of the receiver), the leasehold in question was in possession of the receiver, and from the latter date to the date of the Burrage judgment (April 4, 1932), it was in the possession of Hunt and others. The effect of the judgment was, not only to confirm the right of Burrage to an -undivided 2-acre interest in the 500 acre leasehold, but necessarily also confirmed his right to a proportionate share of all oil runs to the date of judgment. The trespass to try title suit filed by Hunt Production Company against Burrage seeks to relitigate the title to the 2-acre undivided interest already determined finally in favor of Burrage as to Hunt and those for whom he acted as trustee and, under the statute quoted and applicable rules of law, was also binding upon Hunt Production Company, which was .organized and acquired title to the property after the judgment was rendered. The prosecution of the suit, in our opinion, can have no effect other than to embarrass, hinder, frustrate, and delay the final and successful enforcement of the judgment in favor of Burrage.

We -hold that the proceeding filed by Tiim should not be considered an independent suit, but an effort to secure the enforcement of his judgment, and that the writ of injunction, being purely ancillary to the main proceeding,' was authorized as a means of effectually enforcing the judgment. We therefore affirm the judgment of the court below.

Affirmed.