Hinson v. State
245 S.W.2d 755
Tex. App.
1952
Check Treatment

*1 held board, return could not discretion.” had abused its the .'board precise

Such situation seems to be the judge, Evidently the trial

the case bar. case, would had he Board in this been the far as application

have in so garage, related to the construction record,

but, the trial the whole viewing Board could appli- denying

abused its discretion

cation and hence he concluded that he legal authority to set aside

ruling Board. abuse its

Since the Board refusing permit here

discretion wholly to what

sought, it immaterial as might judge

the trial have done would application appel done acting he

lants Board properly

Adjustment. The court could not which was

substitute its discretion Board.

legally Texas Con vested Pittillo, Theatres

solidated 396, pt. 2. S.W.2d

Accordingly, appellants’ points all ap-

error are overruled

pealed from is affirmed.

LESTER, J., took no con- disposition case.

sideration

HINSON et al. v. STATE.

No. Appeals Texas. Austin.

Court Civil 5, 1951.

Dec. Rehearing 16, 1952. Denied Feb. *2 jointly by Jennings, The contends that Hinson is State King, Frank L. & Marshall severally and to the State appellants. liable Graham, for Jr., the under State Watson, Atty. Gen., Daniel, K. B. Price lease. Gen., appellee. tty.A Asst. appellants that the State concede payments entitled to one-half of the oil was Chief ARCHER, Justice. or $400. Texas, by the of State suit ais This Attorney owner, Reeves, General the R. the by surface brought John any to collect authority convey B. Scott mineral and no to Hinson W. C alleged Relinquish be therein to due the to W. interest interest C. $400 gas lease an and of oil surface merely terms Act constitutes the ment the under Relinquish- subj ect the to land author of the with agent owner on executed gas and on ity to execute oil leases Act. ment Statutes, Art. Ann.Civ. land. Vernon’s a jury without before was Trial Garner, 5367, seq.; Lemar v. et County at Law of Travis County 502, 50 S.W.2d 769. court entered trial and against Hinson for $200 State of no interest in sur- favor Since Hinson ($469) and interest plus $269 minerals, principal signing or in the face principal plus Lucas, al, by was un- et Hinson to lease secondarily held Scott and ($469), effect. necessary legal interest adjudged against Hinson. liable money Primary due prosecuted this defendants Both Relinquishment Act was under the trial court judgment of appeal Reeves, agent surface owner and as on of error: points -on two Consequently, Hinson was the State. holding that court erred trial (1) The he was liable under Act since to the W. Hinson .appellant agent neither surface nor by money received under State purport to act such. State lease in this case. gas involved oil .the Corp. Petroleum Tex.Civ. Shell holding erred (er. App., (2) ref.). S.W.2d 448 Scott, appellant contends, however, The State lease, is to the State oil and is liable for the under to owed any sums money him under the doctrine of received. lease. theory recover To on this the burden was belonged involved this suit land prove money State to on the re Free was School Fund and Public to the belonged ceived to Plinson patented It was mineral land. classified as support is no evidence to a finding There Reeves, R. 2, to April John pre indulge to this effect. If we must May mineral estate. On reserving the sumption -adopt we would the one which deed to executed mineral Reeves reasonable, appears i. most e. that the $400 conveying an undivided Reeves, paid agent, State’s was the in the minerals and min- 15/32nds money. land. Subsequently in this on eral Appellants’ assignment No. sus- One is Reeves and Hinson November tained. execution of the oil and in the joined In the judgment trial court it was E. Lucas involved J. provided: Kerbow, provided lessees. This lease B.O. payment of paid plaintiff, oil “7. That for an the State of B, produced Texas, out of the do first oil have and the lessors recover from L. payment sold, paid $200, in full together with in- December, each lessors re- terest thereon the rate annum 6% money, ($469 ceived no total) paid let issue. execution State. jointly and the undivided one-sixteenth the value “8. That together herein, severally oil and liable for the reserved like at the rate amounts to the owner soil.” the interest thereon *3 ($469 total) annum from Empire State, In & Fuel Gas Co. v. adjudged due State of Texas 265, 272, Tex. Supreme 47 S.W.2d “ should the from Hinson and C. W. * * * Court said: under the fair sum of Texas be unable to 'collect such and reasonable construction given to Hinson, plaintiff shall then expression, ‘like amounts to the owner of said sum from Scott and recover soil,’ Robison, in Greene court v. for which let execution issue.” we are constrained to hold judgment It is therefore to be noted that may soil receive one half liability primary against Scott 'for a bonus, remaining and the half is to be secondary liability as for the state.” adjudged against Hinson. The following assignee oases hold that an held that was not liable We have an oil and executed under amount, there is no follows that Relinquishment Act is liable secondary liability against Scott. for all sums due under such lease. Shell cross-assigned supra; not as State, The State has error v. Permian v. Oil Co. 568; of the court to Scott as the failure 161 S.W.2d Cross Co., primarily Shell Oil amount due 188 S.W.2d 375. of the trial court award- ing judgment question is as to re- W. Hinson is versed and assignee-of as the oil and lease to here rendered that the State take any money nothing; judgment against State for State un- and the B. Scott is der the lease. reformed so judg- as to omit ment against him secondary liability We believe that Scott as adjudged against the sum adjudged is liable for as reformed, and as is affirmed. n trial court. Reversed part rendered in in lease, In assigned to Mr. part reformed and affirmed. provision Scott in there was a agreed promised pay the lessees Appellants’ lessors which was due the when and’ PER CURIAM. paid by lessees; and, this $800 ‘ 5, 1951, On December we rendered our paid by December, opinion part in this case and as a thereof provision was that: “If Further we reformed the against L. B. party estate assigned of either hereto so omit against him n privilege O'f assigning whole or secondary liability for the amount ad- expressly allowed, the covenants judged against Hinson. heirs, hereof shall executors, extend to their appellee has filed its motion to administrators, successors, or assigns. n n » -* brief, amend its we have motion granted. Rule T.R.C.P. 5368, V.A.C.S., Article popularly called towas the Relinquishment Act, reads, part, “* * * follows: statement All leases and 1. Amend the of Point sales II in contents, so assignable. made shall No oil or table of in the statement of 3-, shall Appellee’s Reply -be Points on page sold or leased hereunder 9, by less than ten year page cents the restatement of Point II on acre plus royalty, purchaser “secondarily” and the striking so that lessee word every shall in pay “Appellant case II will State ten cents Point read: L. B. Scott -per per year acre rentals; of sales and liable to the and is State for the n in case of production pay shall interest.” page by add- prayer on 2.Amend “or, alternative following: ing the Honorable the event and in appellee liable, finds C. W. judgment find- enter

prays that plus the the sum due on date.” in accordance amendments are

These *4 petition. prayer rehearing is also reformed previous judgment

and our is here rendered L. B. Scott for $400 left 1, 1928; such undisturbed.

otherwise rehear- may file motion for

Appellants in other cases. granted. reformed.

Previous REALTY v. SOUTHERN

WALZEL CORP. et al.

No. 12392. Appeals Texas. Civil Galveston. Feb. Denied