On Motion to Dismiss Appeal.
MONROE, C. J.
The two plaintiffs brought separate suits against defendants to annul a mineral contract, or contracts, into which they had entered, which suits, after having been consolidated and tried, were dismissed; and, plaintiffs having appealed from the judgment of dismissal, the appeal was dismissed, on the ground of acquiescence. Pending the litigation, R. T. Layne appears to have entered into contractual relations with plaintiffs, which, according to his allegations, gave him an interest in the result, and he made an attempt to intervene in the case on the appeal, which having been unsuccessful, he appeared in the district court, and, as a third person, representing that he was aggrieved by the judgment which had been rendered, was allowed a devolutive appeal therefrom, which defendants now move to dismiss, on the grounds: (1) That he shows no appealable interest; (2) that he cannot appeal after plaintiffs have abandoned their appeal. Other grounds set up seem to merge into those stated.
1. By way of answer to the motion appellant alleges that he took a lease from plaintiffs of the property that was involved in the suit between them and defendants upon the [529] theory that the contract was void as to plaintiffs, and that he was and is, therefore, aggrieved by the judgment of the district court.
[1-3] The Code of Practice declares that third persons not parties to a suit may appeal from the judgment therein “when such third persons allege that they have been aggrieved by the judgment.” Article 571.
The right of appeal thus accorded is, of course, subject to the constitutional limitations upon appellate jurisdiction. We are, however, reasonably satisfied from the showing made that the value of the interest claimed by appellant exceeds the amount required to confer such jurisdiction on this court. Whether his claim is well founded in law is a question concerning which we think he is entitled to a hearing on the merits. Mut. Life Ins. Co. v. Houchins, 52 La. Ann. 1137, 27 South. 657.
2. How far the acquiescence of the parties to a judgment will affect the rights of a third person appealing therefrom is a question that can better be determined after a hearing on the merits of the appeal than on a motion to dismiss it.
The motion to dismiss is therefore overruled. •
DAWKINS, J.
This record presents for our decision the consolidated cases of D. H. Raines and Joe Herndon against the same defendants, suing for the cancellation of certain mineral leases upon lands situated in the parish of Caddo. They each allege that they executed certain documents purporting to grant to C. E. Dunson, one of the defendants, for a stipulated cash consideration, a lease of all the minerals lying in, under, and upon their respective properties, but that, as a matter of fact, nothing whatever was ever paid therefor; that after the signing by petitioners of said documents there was inserted therein without their knowledge or consent the following clause, to wit:
“It is agreed and understood by both the parties hereto that the drilling of a well for oil or gas either on the above-described .property or within a radius of two miles of the above-described property shall be in full satisfaction of the drilling clause under this lease”
—that in the alternative, if said clause was in said contracts at the time, it was purposely concealed from petitioners, who are unlearned and unlettered, and who were ignorant of the import thereof, and that, knowing this fact, the said Dunson read the contracts to them omitting said clause; that therefore the same were signed by petitioners through error and misrepresentation; and, that neither the said Dunson nor his agents or assigns ever commenced drilling upon said lands within the time provided in said leases. They further allege that said leases were* null and void for the reason that the said Dunson never assumed any obligation thereunder, were never accepted by him, contained a potestative condition, and were lacking in mutuality.
Plaintiffs prayed that the said leases be annulled and canceled, and, in the alternative, for judgment for the stipulated cash consideration named therein, but which it is claimed was never paid.
Defendants appeared and admitted that no cash had been paid at the signing of said leases, and averred that the recited consideration had been inserted therein with the express understanding that Dunson was never to be liable therefor; that the clause quoted above and alleged by plaintiffs to have been inserted after signing was in said leases at the time, and well understood and agreed to by both parties, plaintiffs having themselves read the leases fully before signing. They further aver that wells were drilled on said lands within the periods stipulated, and, in addition thereto, another well was drilled within the limits provided in said leases, and which proved to be a producer; that plaintiffs’ lands were located in what is known in [531] oil parlance as “wild cat” territory; that said leases were so worded and drawn with the express understanding and hope on the part of all concerned that a producing oil field might be discovered; and that said Dunson and his assignees accepted said leases and proceeded to drill and explore for oil and gas, all as provided therein.
Defendants prayed that plaintiffs’ demands be rejected at their costs.
There was judgment for the defendants in both cases in the court below, and the plaintiffs applied for and perfected appeals to this court. Thereafter motions were filed here, before said cases had been argued on the merits, setting up that the plaintiffs had acquiesced in the judgments of the lower court, and praying for the dismissal of the appeals. The matter was then referred back to the district court for the purpose of taking testimony on that point, which having been done, the motions were submitted, and the appeals were dismissed on 'the ground of abandonment and acquiescence in the judgments of the lower court by plaintiffs. However, while the motions to dismiss were pending before this court, one R. T. Layne, alleging himself to be a third party interested in whatever judgment might be rendered in said cases, appeared and attempted to intervene and oppose the dismissal of said appeals. The intervention was denied.
Thereupon the said Layne filed in the court below petitions setting forth that, while the said causes were pending in the district court, and before any judgment had been rendered thereon, he had acquired from the plaintiffs therein, D. H. Raines and Joe Herndon, mineral leases upon the same property described in their petitions, and had paid therefor large sums in cash; that he was, therefore, vitally interested in said causes, and entitled to urge all of the grounds of attack made by the plaintiffs upon said lease contracts against the said O. E. Dunson and others; that in addition thereto he had paid the costs of the trial court, had obligated himself to pay the costs of appeal, and the fees of counsel in prosecuting the same, all as a part of the consideration for the leases to him. Wherefore he prayed that he be permitted, as a third party interested therein, to prosecute appeals from the judgments of the lower court, and accordingly orders of appeal were granted, and a new transcript was regularly and timely filed herein by the said Layne.
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On Motion to Dismiss Appeal.
MONROE, C. J.
The two plaintiffs brought separate suits against defendants to annul a mineral contract, or contracts, into which they had entered, which suits, after having been consolidated and tried, were dismissed; and, plaintiffs having appealed from the judgment of dismissal, the appeal was dismissed, on the ground of acquiescence. Pending the litigation, R. T. Layne appears to have entered into contractual relations with plaintiffs, which, according to his allegations, gave him an interest in the result, and he made an attempt to intervene in the case on the appeal, which having been unsuccessful, he appeared in the district court, and, as a third person, representing that he was aggrieved by the judgment which had been rendered, was allowed a devolutive appeal therefrom, which defendants now move to dismiss, on the grounds: (1) That he shows no appealable interest; (2) that he cannot appeal after plaintiffs have abandoned their appeal. Other grounds set up seem to merge into those stated.
1. By way of answer to the motion appellant alleges that he took a lease from plaintiffs of the property that was involved in the suit between them and defendants upon the [529] theory that the contract was void as to plaintiffs, and that he was and is, therefore, aggrieved by the judgment of the district court.
[1-3] The Code of Practice declares that third persons not parties to a suit may appeal from the judgment therein “when such third persons allege that they have been aggrieved by the judgment.” Article 571.
The right of appeal thus accorded is, of course, subject to the constitutional limitations upon appellate jurisdiction. We are, however, reasonably satisfied from the showing made that the value of the interest claimed by appellant exceeds the amount required to confer such jurisdiction on this court. Whether his claim is well founded in law is a question concerning which we think he is entitled to a hearing on the merits. Mut. Life Ins. Co. v. Houchins, 52 La. Ann. 1137, 27 South. 657.
2. How far the acquiescence of the parties to a judgment will affect the rights of a third person appealing therefrom is a question that can better be determined after a hearing on the merits of the appeal than on a motion to dismiss it.
The motion to dismiss is therefore overruled. •
DAWKINS, J.
This record presents for our decision the consolidated cases of D. H. Raines and Joe Herndon against the same defendants, suing for the cancellation of certain mineral leases upon lands situated in the parish of Caddo. They each allege that they executed certain documents purporting to grant to C. E. Dunson, one of the defendants, for a stipulated cash consideration, a lease of all the minerals lying in, under, and upon their respective properties, but that, as a matter of fact, nothing whatever was ever paid therefor; that after the signing by petitioners of said documents there was inserted therein without their knowledge or consent the following clause, to wit:
“It is agreed and understood by both the parties hereto that the drilling of a well for oil or gas either on the above-described .property or within a radius of two miles of the above-described property shall be in full satisfaction of the drilling clause under this lease”
—that in the alternative, if said clause was in said contracts at the time, it was purposely concealed from petitioners, who are unlearned and unlettered, and who were ignorant of the import thereof, and that, knowing this fact, the said Dunson read the contracts to them omitting said clause; that therefore the same were signed by petitioners through error and misrepresentation; and, that neither the said Dunson nor his agents or assigns ever commenced drilling upon said lands within the time provided in said leases. They further allege that said leases were* null and void for the reason that the said Dunson never assumed any obligation thereunder, were never accepted by him, contained a potestative condition, and were lacking in mutuality.
Plaintiffs prayed that the said leases be annulled and canceled, and, in the alternative, for judgment for the stipulated cash consideration named therein, but which it is claimed was never paid.
Defendants appeared and admitted that no cash had been paid at the signing of said leases, and averred that the recited consideration had been inserted therein with the express understanding that Dunson was never to be liable therefor; that the clause quoted above and alleged by plaintiffs to have been inserted after signing was in said leases at the time, and well understood and agreed to by both parties, plaintiffs having themselves read the leases fully before signing. They further aver that wells were drilled on said lands within the periods stipulated, and, in addition thereto, another well was drilled within the limits provided in said leases, and which proved to be a producer; that plaintiffs’ lands were located in what is known in [531] oil parlance as “wild cat” territory; that said leases were so worded and drawn with the express understanding and hope on the part of all concerned that a producing oil field might be discovered; and that said Dunson and his assignees accepted said leases and proceeded to drill and explore for oil and gas, all as provided therein.
Defendants prayed that plaintiffs’ demands be rejected at their costs.
There was judgment for the defendants in both cases in the court below, and the plaintiffs applied for and perfected appeals to this court. Thereafter motions were filed here, before said cases had been argued on the merits, setting up that the plaintiffs had acquiesced in the judgments of the lower court, and praying for the dismissal of the appeals. The matter was then referred back to the district court for the purpose of taking testimony on that point, which having been done, the motions were submitted, and the appeals were dismissed on 'the ground of abandonment and acquiescence in the judgments of the lower court by plaintiffs. However, while the motions to dismiss were pending before this court, one R. T. Layne, alleging himself to be a third party interested in whatever judgment might be rendered in said cases, appeared and attempted to intervene and oppose the dismissal of said appeals. The intervention was denied.
Thereupon the said Layne filed in the court below petitions setting forth that, while the said causes were pending in the district court, and before any judgment had been rendered thereon, he had acquired from the plaintiffs therein, D. H. Raines and Joe Herndon, mineral leases upon the same property described in their petitions, and had paid therefor large sums in cash; that he was, therefore, vitally interested in said causes, and entitled to urge all of the grounds of attack made by the plaintiffs upon said lease contracts against the said O. E. Dunson and others; that in addition thereto he had paid the costs of the trial court, had obligated himself to pay the costs of appeal, and the fees of counsel in prosecuting the same, all as a part of the consideration for the leases to him. Wherefore he prayed that he be permitted, as a third party interested therein, to prosecute appeals from the judgments of the lower court, and accordingly orders of appeal were granted, and a new transcript was regularly and timely filed herein by the said Layne.
After the lodging of the new appeals here by Layne, defendants moved to dismiss the same on the grounds that the said Layne was without sufficient interest in the subject-matter to justify an appeal; that plaintiffs having abandoned their appeals, and Layne having taken a second mineral lease on the same property pendente lite with full knowledge of the pendency of said suits, having employed the counsel therein, and having used the said plaintiffs as his agents for the prosecution of said causes, and they having abandoned the same, that he was bound by the judgment of dismissal; that the judgment of the lower court did not in any wise pass upon the second mineral leases; and that the judgment of the lower court had become res judicata by the dismissal of the appeals of Raines and Herndon. Subsequently an amended motion to dismiss was filed on the ground that the prices of the leases sought to be annulled were less than $2,000; that the consideration for the second leases was less than $2,000; and that there was nothing in the record to show that the property in dispute was worth sufficient to give this court' jurisdiction. Layne filed affidavits showing the amount in dispute to be largely in excess of $2,000.
The motions to dismiss were overruled, and we postponed, until a hearing could be had on the merits, the question of how far the acquiescence of the parties to a suit may affect the rights of a third person appealing therefrom.
[533] Plea of Bes Judicata.
[4, 5] On April 2, 1919, defendants filed in this 'court a plea of res judicata, based mainly upon the grounds urged in the motion to dismiss which was overruled; that is, that Layne being the real party at interest, as set forth in his petition for appeal, having acquired whatever interest he has pending the litigation with full knowledge thereof, with an agreement on his part to pay the costs and expenses, and the judgment therein having become final as between the plaintiffs, in whose names he chose to litigate, and the defendants, the same is now res judicata and binding upon the said Layne.
In support of this proposition many authorities have been cited and quite persuasive arguments made, but in each and all of those cases the judgments became final, either by the definitive action of the courts or through the intervention of legal bars, such as failure to timely file the transcripts of appeal or other lapses or waivers of procedure, which had the same effect upon all concerned as final judgments regularly rendered. In none of them do we find that the courts have held that one litigant by acquiescence, collusion, or otherwise may bind or preclude other parties at interest against their consent or over their protests.
The case of Johnson v. Weld, 8 Ea. Ann. 126, was one where the plaintiff sued the defendant for a slave, and it was found that the same slave had been the subject of litigation between the defendant in that case and the bailee of the executor of the estate from which Johnson (through his wife) acquired title in the state of Tennessee, which litigation had gone regularly to final judgment in the courts of that state, and that the bailee or possessor of plaintiff’s vendor in title had litigated the same questions involved later in the suit in this state with the full knowledge and consent of all concerned. It was held by this court that the plaintiff and his wife were parties privy with the executor of the estate, who was bound by the final judgment against his bailee; that the issues had become foreclosed in the courts of Tennessee; and that the same could not be reopened in this state. There was no suggestion of collusion or unfair dealing, nor was anything done by the bailee against the wish or over the protest of the executor, who was the silent, but real, party at interest, but on the contrary, the litigation was prosecuted in the courts of Tennessee, with his full knowledge, acquiescence, and consent to finality.
In Graugnard v. Forsyth, 44 La. Ann. 327, 10 South. 799, there was an express stipulation to avoid other litigation, and to await the result of the suit in which it was made, and very naturally the parties were held to their agreement.
Succession of Theriot, 120 La. 386, 45 South. 486, was a case in which an attorney, representing an heir who had opposed the final account of the administrator sought to take an appeal in his own name after the appeal of his client had been dismissed as having been filed too late. His interest in the subject-matter of the litigation was based upon the allegation that he had had an agreement with the mother of his client, from whom the client inherited, and who was the partner in community with the deceased, whose succession the administrator represented, by which he was to receive one-half of whatever amount was recovered in a contest as to whether certain property was paraphernal or belonged to the community. It was held that his rights were measured by the judgment against his client, and that, this having become final through failure to file the transcript within the time allowed by law, he could not prosecute a separate appeal. In other words, not having recovered anything, he was not entitled to receive anything under the judgment, and in effect it was held that the matter could not be reopened for the pur[535] pose of determining whether or not, if the' appeal had been properly prosecuted, a recovery might have been had by the client, and to tax the estate with one-half thereof as his fee when the matter had become final against hid principal and client.
The remaining cases were cited as supporting the principles laid down in the cases above referred to, and we deem it unnecessary to review them here.
We think that Layne’s rights must be determined as of the date of his lease contracts, which, according to the record, were taken just a few days before the judgment of the lower court was rendered, after the case had been tried and submitted, but before the decision had been announced. Had the cases continued to final judgment under the circumstances in which the original appeals were perfected and lodged here, we think Layne would have been concluded thereby; for, while not a party on the face of the record, in reality he was, and it had become immaterial to Raines and Herndon who explored their lands, so long as the same were developed and they received their one-eighth royalty. However, plaintiffs received from Layne substantial sums of money for the leases given to him, and divested themselves of the power to alter the extent of his rights as they existed at the moment his contracts were given, and could not by subsequent dealing with the defendants give to the original leases any greater force or effect than they had at that time, especially where those with whom they sought to deal were aware of the interest of Layne which had intervened. That the agreement which was made by defendants with Raines and Herndon for the dismissal of their appeals was made after Layne’s contracts were obtained and recorded, and with full knowledge on the part of the defendants, is not disputed.
We are of the opinion that the plea of res judicata is without merit, and the same is accordingly overruled.
[6] R. T. Layne, appellant, attaches to his petitions for appeal certified copies of the notarial leases from the original plaintiffs,. D. H. Raines and Joe Herndon, wherein it appears that the former, for the price of' $1,000 cash, and the latter for the sum of $1,400 cash, with other stipulations and obligations assumed on the part of Layne, leased, to the appellant herein the identical lands-described in the original contracts given C. E. Dunson, and which latter contracts were-assailed by the said Raines and Herndon in-the inception of this litigation. Layne’s leases are dated July 25, 1917, and he bases-his claim of interest in the outcome of these consolidated suits upon the proposition that,, if the judgments of the lower court are allowed to stand, they will have the effect of validating the original leases to Dunson and thereby deprive him of his rights under his subsequent contracts. With this showing of interest, he seeks a reversal of the judgment of the court below, in order that his rights may take first rank upon the property.
Appellant relies upon article 571 of the Code of Practice as supporting his right to have the judgments appealed from reviewed, which article is as follows:
“The right of appeal is given, not only to those who were parties to the cause in which a judgment has been rendered against them, but also to third persons not parties to such suit, when such third persons allege that they have been aggrieved by the judgment.”
An examination of the jurisprudence under this article convinces us that wherever the appellant alleges and shows that he has an appealable interest, which may be affected by the judgment, a case is disclosed which will justify this court in passing upon the merits of the cause in so far as it may affect the interest of the appellant. It is not necessary that that interest should have been previously adjudicated, but sufficient that it reasonably appear, and in many instances we have remanded the cases to the lower courts for [537] a more complete ascertainment thereof; in other cases we have passed upon the merits of the causes in which the appeals were taken and reserved to the parties the right to determine contradictorily the claims of such third persons. Mutual Ins. Co. v. Costa, 32 La. Ann. 3; Bonnet v. Judge, 29 Da. Ann. .397; Succession of Henderson, 2 Rob. 391; Byerly v. Judge, 23 La. Ann. 768; Belden v. Markey et al., 21 La. Ann. 743; Fazende v. Flood, 24 La. Ann. 426; Pecot v. Judge, 27 La. Ann. 184; Rathbone v. Parish of St. James, 28 La. Ann. 324; Succession of Haley, 49 La. Ann. 709, 22 South. 251; Succession of Bothick, 110 La. 109, 34 South. 163; N. O. T. & M. Co. v. State Board of Appraisers, 135 Da. 729, 66 South. 160; Garland’s Code of Practice (4th Ed.) p. 421.
We think the appellant makes sufficient showing of interest to justify us in passing upon the merits of the cases as between the •original litigants.