*1 Suрreme 220 Reports,Vol. 116. Court Accordingly, questions we recommend that 1 certified Nos. 3, each, be answered “Yes.” questions certified, Other were but in view the of answers rec- 3, they ommended for 1Nos. are immaterial. opinion answering The of Appeals Commission certified
questions adopted and ordered certified to the Court of Civil Appeals. sitting.
J.C. Cureton not Greenwood, B.
Thos. Pierson, William Associate Justices. Seagraves O. Judge, John District et al. 1,
No. 4560. Decided December 1926. W., (288 417). S. —Supreme Appellate Jurisdiction. Court — appellate jurisdiction Supreme The Court Art. Sec. Appeals appel- extends to Constitution cases in which Courts of Civil have jurisdiction, regulations Legis- late lature “under but such restrictions as the may prescribe.” (Rev. Stats., regulations 1925, Art. Under these 1728) indispensable prerequisite it is an to its has exercise case brought Appeals by (P. 237). appeal been to a Court Civil of error. or writ —Supreme Original Jurisdiction —Mandamus. Court — original jurisdiction Supreme The (Constitution, conferred on the Court 3) mandamus, etc., Art. certiorari, Sec. procedendo, issue writs jurisdiction aid of its District does not authorize their use to correct errors of jurisdiction management Court (in made the exercise of its of a receivership) though these, by evidence, the uncontradicted threatened destroy, during litigation, rights litigant property has who pre- tendered to the they trial court method which could have been jurisdiction served. Such error in the could exercise be reviewed of its appeal. (Pp. 238). Beyond 3.—Same—Orders the Power the Trial Court. receivership, power trial in the of a conduct receiver of had no jurisdiction involved, property on its confer in his dis- cretion, judicial resting only of matters determination discretion nullities, court itself. Such orders were and where destructive litigant may, mandamus, interests of a its writ of
require disregard carrying the trial court to them refrain them out. (Pp. 238, 239). 4.—Same—Case Stated. Pending rights involving actions over a lease of to mine oil and producing contemplated of the lessee in a well and wells production premises, appointed by on the leased a receiver being possession controversy, premises court orders were (1) To drill discretion: authorizing his the receiver' by the court entered *2 against charge making a premises, the cost leased wells for
other the the (2) certificates; make To tests by of receiver’s property issuance gas therefrom was existing determine whether producing well and so, in the exercise then that it was not merchantable, determined if he nearby. And he sink another “kill” well and discretion to of his authorized to produced this so merchantable market and sell —all judgment the court. submitting and acts to the his determinations without Held, of mat- determination on the receiver the conferred such orders that lessee; rights affecting judicial interest discretion ters power Supreme reason; had Court they and that the were void for (Pp. disregard by them. require writ of mandamus to 224-240). the trial court —Receivers—Appointment by in Vacation. 5. judge in vacation appointment made of a receiver The hearing. represented and consent to such interest are
where all the (P. 238). —Jurisdiction—Supreme Court —Constitution. 6. Court, jurisdiction Supreme either abso- as is conferred on Such 3, Constitution, may 5, lutely contingently by exercised Art. Sec. of the 237). (P. power. regard statutory of such or declarations
without omissions — — Authority Conferring Mandamus— Judicial 7.—Jurisdiction—Receiver Remedies. attempted Though authority a receiver be conferred on was_ discretion, judicial nullity involving him because the exercise liability suit, exercising neither the risk same he his acted own remedy, by appeal, prevent the use of the nor that would existence Court, preserve rights party Supreme of a writ of mandamus against not avail action where other remedies would such unlawful during prevent the preserve and to status thereof destruction of his 239). pendency litigation. (Pp. 238, Original Supreme application Court against as District writ of and mandamus Green certiorari Judge, Company, interested and others. The Gulf Houston Gas relator, not presented petition which does in intervention appear to be filed. Seagraves’ having granted application,
The file leave to A, Appeals, referred Section the Commission of same opinion merits, adopt of the court. their same as that on the 9, rehearing March A motion was overruled on of relator for Myer Campbell, Eskridge, & Dougherty, K. James Marshall Vinson, Elkins; & Simmons, Ragsdale, Sweeton Fly & Weems, for relator. illegal and this case was appointment the receiver in
The the suit had appointment void because at the time jurisdiction. Harri- Amason v. had been filed and court no Supreme 222 Reports; Court Vol. 116. gan, 566; W., L., 23, 35, 288 S. 37; p. C. Vol. Sec. Standard Ency., 16, 2, 626; p. Guy Doak, Vol. Sec. Kan., 236, v. 47 27 968; Pac., Presley Harris, Ind., E., 188; v. 102 14 N. Harwell Potts, Ala., 70; Gifford, 80 Iowa, 148; French v. State v. Bank, Mo., 164, W., 168 S. Texas, expressly prohibited unless provision constitutional statute, inherent, appellate has original jurisdiction issue writs of certiorari to the inferior courts of 3, Constitution; State. Art. Sec. State Art. Stats., 1914; Rev. Stats., 1925; Corpus Art. 1733 Rev. Juris, Vol. p. 129, Sec. and authorities cited in notes. If there adequate remedy provided by appeal or writ error, lie, remedy certiorari adequate, will not but if the is not *3 Juris, 53, certiorari will Corpus 11, 54, 55, 58, lie. pp. Vol. Secs. 111-116.
The writ of certiorari will reach and correct errors of law committed in the keep trial and be the trial court sufficient within the jurisdiction. L., 5, limits of its R. C. Vol. Sec. 3, p. 250, 11, 259, p. Corpus Juris, 11, 1, p. Sec. Vol. Sec. 88, Mich., notes; People, in authorities cited Jackson 9 v. 111; Dec., 491; Schubel, 77 Am. 29 Milwaukee Iron Works v. Wis., 444, Rep., 9 Am. 591.
Certiorari serves same as function writ of error would serve in case appeal provided there is by judgment no from the law complained Corpus Juris, 11, lower court of. Sec. Vol. 5, p. 89, 5, 5, notes; L., and authorities cited R. C. Sec. Vol. p. 253, and cited authorities in notes. judge
A power appoint chambers has the a receiver charge take ity property, judge, judge, but the author- as has no power property at chambers to order the in the hands of receiver sold. time This the court must do in term parties after due notice to the at interest. v. Aultman Wilson Co., W., Taylor 783; Gray & 158 Loan S. State ex rel. Phoenix v. Assn., W., 74; 364; Co., W., 60 S. 65 Hurst v. Nichols Bros. S. Cyc., 16, 608-609, 624-627, pp. Stand Vol. and authorities cited. cannot, Refugio County legally A district court held in County dispose DeWitt vacation a suit filed the dis- Refugio by parties. County trict court of even consent Valley Co., American Nat. Reservoir & 209 Ins. Co. v. Canal W., 438; Hodges Ward, Texas, 244; Lyons-Thomas S. v. 1 Hard- Manfg. Nichols, Perry Co., W., 100; ware v.Co. 27 S. Hunton v. Texas, 55 legal right
Under the no law receiver has sell possession in his receiver unless directed so to do 223 19261 County The District Refugio in term time. District Court done, order, authority as was Judge had no vacation 2317, 2297, Rev. 2293, Arts. sale the receiver. Wilson, 789; Stats., 1925; W., v. Byers, Barker Pitman v. 101 S. W., Construc- 748; Surety v. David Castle 189 S. National Co. S., Fitzgerald, U. Co., 800; W., Casper tion v. S. S., 32 L. Ed., Slauson, 882; 30 L. 130 U. v. Town Andes Ed., 989. directing receiver The order issued Green n premises and to kill produced sell leased from the order, is being a premises, vacation well situated on said appeal. no
wholly illegal, allows the law and from such order Seagraves, and damages plaintiff, O. R. The intervenor, result to that would per Company, if said receiver Houston Gulf Gas controversy, beyond gas well, mitted to sell or kill said Talking Talkington irreparable. Stats., 1925; Art. Rev. 789; W., ton, W., Byars, National 835; 266 S. Pittman v. 101 S. 800; W., Hunter v. Surety Co., Co. v. Construсtion 170 S. Castle Texas, Nichols, 55 gas in a a If receiver make sale of should undertake to possession order issued
his Judge as receiver the terms under chambers, alto- January same would be Green gether judicial void, a sale would not valid because sale, voluntary sale nor would it be valid aas owning and the receiver and his bondsmen damages personally responsible owner sale would be *4 22, 25, 16, 19, gas. L., 2, 6, p. p. Sec. Sec. R. C. Vol Sec. p. 29, authorities cited. court; inde- judge an
The does constitute pendent as used part by the term court evidently 2297, Stats., 1925, Legislature intended Art. Rev. 2297, Art. judge a a court. mean and not a court session Talkington W., 789; Stats., 1925; Byers, 101 Rev. Pittman v. S. 748; W., Wilson, Talkington, 835; 189 S. W., Baker v. 266 v. S. 716, J., 15, 1, 715, pp. C. Vol. 718. Sec. title, pass necessary judicial sale is
Confirmation given sale be notice and all interested should 16, L., Sec. given Vol. opportunity to contest same. C. an be 57, p. 78. neces jurisdiction, is not it law the court has common Where passed aor statute provision to sary a constitutional certiorari, give jurisdiction to issue writs
enacted to such court remedy. Corpus being common law the writ of certiorari Mex. v. 95; Territory New Juris, 19, p. 18 and Secs. Vol. 224 Supreme Vol. 116. Reports, Court Valdez, M., 548; 1 N. Campbell, Tennessee Central R. R. Co. v. 1012; W., Allen, Atl., 75 370; Specht S. Rush v. 76 v. Central Railroad, Atl., Pass.
The term Statutes, “court”, used Art. Revised Legislature was intended to mean time. the court in term Stats., 1925; W., 789; Art. Byers, Rev. Pittman v. 101 S. Wilson, W., 748; Baker v. Surety 189 S. National v. Castle Co. Co., W., 800; 87; Const. Casper Fitzgerald, S., 170 S. 121 U. Slauson, S., Town of Andes v. U. Green, respondent,
John M. pro per., Proctor, and V. B. respondent.
ON MOTION FOR LEAVE FILE PETITION. TO opinion : Court is inclined to Per Curiam it power has complained no to review the orders of in the jurisdiction. appellate exercise concluded, The Court has however, peti- event the motion for leave to file the granted, tion should be to determine whether the should grant juris- original relator relief in the exercise Court’s diction mandamus for the vacation of void orders. opinion NICKELS delivered the of the Commission Mr.
of Appeals, Section A. THE STATEMENT OF CASE. subject Heard owned and to mineral leases still owns certain Refugio County. years ago lands in favor Some he executed respect Pratt a mineral lease in to the lands. Pratt then assignment appar- made contract and whereúnder ently acquired an undivided interest in the mineral leasehold purchase dispose portion of Pratt’s whatever gas might brought produced from the lands. suit Pratt against Seagraves sought assign- wherein he cancellation contract, brought against ment and etc. Heard suit Pratt assigns etc., lease, in which cancellation mineral sought. Court, pending Both suits are now in the District Refugio County, of which Hon. John M. is the Green *5 18, mentioned, 1925,
In the case first and on an November entered, hearing, order was in chambers and without notice or Murray charge appointed wherein was receiver to take of the property controversy. Murray duly qualified. order, A like conditions, under like was made the other cause on December Murray qualified. appeal 14, 1925, and thereunder No was case, modify in either nor was motion to vacate taken orders, them, receivership or either of made. Judge 1925, presented December 14,
On receiver Green reрort writing in which it was stated that receiver “has potential producing capacity ascertained and determined that the gas approximate 72,000,- of said well on said land is estimated to gas day 000 cubic feet of the well at this time is —that provisions marketing closed and no been made for have therefrom,” sale of that the condition of the well was bad being neighboring from land was drained into lands produced lands, and marketed from these that in order to protect drainage, etc., necessary the land involved from it was upon to drill it one two or three other wells. It was further report vicinity shown in the there was in the one but pipe through marketed, available line which the could be operators pipe line would not receive surcharged well old because that with water and sand as a result of defective condition of the well. The operators said, line would take the it was if reconditioned, the old well should be report etc. In the it was parties original stated that at interest claimed that well markеting was then in condition for the there- report prayer from. The hearing contained a and conse- quent directions. Judge Thereupon setting Green entered an order the matters
presented hearing, the receiver Victoria, at Victoria County, 21, 1925, on December and caused notice of the order to be served signed, relator et al. The order was in vaca- tion, at Victoria and caused to be entered in each of the cases. Victoria, 21, 1925,
On December parties all of the appeared ready two cases hearing, announced for the hearing begun. was then and there After some evidence introduced, had been relator and others of the defendants asked hearing a postponement until December 1925. Other parties objected, signed but Green an order that the hear- ing Cuero, County, resumed at DeWitt on December This order was entered each of the cases and therein it is (i. recited that “counsel for the defendants” e. relator and others) “expressly acquiеsced ruling in said court.” On appeared December at Cuero and ready announced Upon was resumed. conclu- testimony Judge sion of the Green took the matter under advise- suggested ment. Thereafter he par- counsel for the various *6 Reports,'Vol. January 6, discus- for they him at meet Cuero ties that meeting entered, etc., sion, order to be the character of Seagraves participated in the discussion. for was held. Counsel signed 6, 1926, an order which January Green On recitals) follows: (except preliminary reads as evidence, having and after all the after heard “And court hearing same, counsel and after consideration of mature following parties, make and enter the deems fit to hearing: said possess receiver, Murray, to shall continue
“That said P. A. land, consti- 250-acre tract control of all of said have to tuting subject-matter A. J. Heard the lease from W. assignment and subject-matter of the Thos. H. Pratt and the Seagraves, contract between Thos N. Pratt and O. assignment' Trustee, Smith, respectively, Gаines, and Mrs. as it far possession receiver to be so said and control of said explore and necessary receiver said developed, tract of develop, explored or cause to be thereunder, possession land as to the or other minerals causes, and said to be exclusive of all to either of said directed, per- ihstructed, hereby and authorized receiver is following: form and all of the forthwith, rea- soon as : That the receiver shall or as “First receiver,
sonably drill, through or have possible, employes of wells on person, two offset drilled under contract with other as, in land, located said 250 offset wells to be so acres these opinion receiver, protect lease and offset will best drainage near the located producing the property from the wells two Heard, acres, as the J. J. line of said 250 and known W. (2). The Heard, (1) Two or Fannie V. wells Nos. One put given to whether or receiver is fullest latitude as contract employes or down these wells any litigant pеrson, wholly independent with some litigant, cause, by any person, or not or whether to contract given discretion wells, fullest put down said and is further contracts, and or provisions as to the contract terms and of said contracts, payment contract method and times of under said contracts all of such but the receiver to make is instructed approval, writing, for the court’s the court and to submit same to making Also, con- but no need had thereon. contract tracts, and discretion the receiver has latitude lowest and best person persons whom he deems drilling of said for the person contract safest with whom to contracts, wells, making it is offset directed and in 1926} marketing try arrange, possible, if for the
receiver *7 possible, gas as in order that said offset wells as soon from gas may may produced property and be be from this revenue used utilized and from said wells. forthwith, as : That the receiver shall or as soon “Second
reasonably possible, presence, cause to be tested in his and any selected, presence expert experts present of or him lease, well said 250-acre now known as the A. Heard W. well, well No. and sometimes called the said test to be Smith time, conditions, for such and under such as the receiver deems proper gas to determine whether or not the from said present quality quantity, well is of and also merchantable and taking gas determine whether not the of from well or said said quantities injuriously reasonable would would affect or not gas acres, any portion or mineral said 250 or same, and also of determine whether or not purity determines, not, such injuriously that it or would would as said test any. gas might pipe
affect line into which be said determines, turned. In the opinion event that said test and merchantable, discretion of and said ,'and drawing gas from not taking^ said would welli injuriously any lease, any portion affect or line into hereby turned, which said would be then the receiver is length empowered authorized and to contract of time such for any litigant, he deems or sale of said to litigant person other causes, not to in either of and these pay immediately pay receive said and over to original said Heard, lessor, one-eighth A. (1/8) J. W.
gross proceeds arising sales, proceeds from such whenever said are received him. give permission any
“The receiver is inter- instructed to person, requests, test, ested present who so and be said permission, course, any representa- extends to and includes delay Commission, tive of the Railroad need the receiver but any parties. such test on account absence of Notice given by telegram, necessary. be if receiver, upon If “Third : it should be determined said well, taking said present test above indicated quantities might likely prove from this well in merchantable injury same, premises, any portion to the leased or or might likely prove injury any pipe into an line which said gas might turned, then receiver is authorized and directed to employ may and he best method means deem to kill said Reports, Vol. further authorized and instructed event he is well, in such vicinity drilled, well in the drill, another near or cause to well, again given present he is fullest latitude of this location, provisions and method or terms as to
discretion any into, regard, as to in such enter contract work, killing either of said old repayments for said methods of drilling place. well in its said new well or wells, present : said two offset Both “Fourth well, therefor, well, the receiver is or said new if substituted gas. In empowered authorized and to market sell said premises, any receiver said leased sales of well on gross one-eighth proceeds (1/8) of from said shall collect gas sale, charge over, expense, pay free seven-eighths Heard, remaining (7/8) of said A. W. J. *8 marketing proceeds arising said from the of sales or payment applied by are of Receiver’s to be said receiver toward Certificates, drilling issued, payment of work of if and the to well, said if neces- two offset wells and new be found said latter sary, seven-eighths (7/8) after of deduction from such amount only by expenses of all sales of the incurred the receiver subsequent up the care date and to the date of this order in to custody premises, expenses incurred and and the said leased making previously in order of authorized this test well, present payment the in for said offset wells wells or Receiver’s new Certificates. provide that shall “All contracts for sale of shall same beyond receivership the this not extend termination writing the case, and all be contracts shall submitted approval, hearing need be had thereon. court for but no authorized, if he same “Fifth : The further deems receiver is expedient advisable, such issue Receiver’s Certificates seventy-five may necessary, excess amount as deem carry any principal, conduct or all dollars in on and thousand by by operations and conducted authorized this decree the issued, hereunder, certificates, if bear the receiver rate of payable and to bear such date be at such times may interest, certifi- proper, all and said as the receiver deem seven-eighths- cates, issued, charge upon and lien if shall be a first (7/8) acres of of all the and other minerals under said 250 subject expenses of land, this receiv- court costs payment ership, and made said receiver. contracts duplicate in order that same “The above order is made aforesaid, respectively filed causes each of said Refugio County hereby Clerk directed District Court of 1926] entry District minutes of the of this order
to make one County, Refugio Texas.” Court of Supreme Court a
Seagraves, permission, filed in the proceedings down petition which contains a recital of each including to and in which the order of December hearing provided at in words was for and thereafer Victoria as follows: hearing appeared,
“That at suit includ- ing day plaintiff, hearing until 6th continued January, hearing testimony
“That at said taken affidavits and oral were defendant, Judge, and considered Hon- the District Green, required orable pleading John and no written hearing by it was of the said defendant objections declared orally. presented their would considered testimony “That the uncontradicted at such offered appears and as pleading parties plaintiff likewise from herein, plaintiff Seagraves, O. R. in said who was defendant two causes and which purpose were for the consolidated hearing, purchase was shown to have all of from said leased tract rate of five cents thousand cubic feet. It was also shown the uncontradicted evidence that he had secured a contract for the construction of Texas, line Company Refugio, the Houston Gulf Gas Houston, city Texas, it was actual course construction, Hope Engineering and that & Construction *9 Company complete had contracted thereof the construction by 1, 1926, given March §4,000,000 a the sum had bond in of complete by it that would the said line date construction of obligation penal per day under a to forfeit two thousand dollars day 1926, completion for each after March the of such that delayed. line should be
“It appeared also from the evidence that O. R. uncontradicted Sеagraves assigned purchase had of such the contract for gas Company, to the Houston that Houston Gulf Gas Company Gulf Gas had in turn contracted the Houston Gas Company city delivery Fuel & of for the of Houston gas place beginning than from said not later March testimony appeared “It that further from uncontradicted gas part the tion, from said lease was the basis construc- being operation pipe line con-
maintenance and of a so by structed Company, and its value the Houston Gas Gulf twenty-five transported city article of Houston was Vol. Reports, thereby Seagraves per feet, and that thousand cubic cents twenty profit assignees approximately of cents had a therein his per profit feet, con- and this invested in the thousand cubic was pipe part line, for the and was of basis struction amortization of its cost construction, also of the cost profit maintenance, the invest- its and a therein on reasonable Seagraves, ment, and interest and estate in was real prоtected and which he entitled to have the order was Judge. defendant, Green, That John M. District Honorable specifically when the term ‘defendant’ is herein used without any naming defendant, Honorable John other is here meant the District “That on it the uncontradicted was shown County Refugio testimony price that the current sale controversy premises main at the cases was five cents chaser in the covered the lease in thousand n cubic only pur- per feet; that the capable day March, until therefor the first accepting delivery line Houston Oil for into its was the Company price Texas, it sold and that the for which could be per cents five thousand cubicfeet. hearing, Seagraves, plaintiff herein, R. at said “That said O. offered to said from from the well take such lease Smith price cubic feet in such volume five cents thousand regulations as the court should of the rules determine of Texas laws of the State Railroad Commissionand the ratably pipe line to draw as should Seagraves pay open well; and аlso in court O. R. offered price the court market in such volume as for said should at such begin required paying therefor from declare guarantee day receiver, March, and to the 1st performance contract such a bond as his his open approve advised the and in court or court that should protect interest and estate this in order to his did purchase purchaser his contract to thereof under thereby preserve to, same, him the the above referred and enable corpus purchaser in the estate of his interest as such controversy. await the determination testimony appeared it the uncontroverted “And further if other than O. that transportation through were sold completed, *10 such sale his line when said of the interest that would result in the destruction absolute gas Seagraves purchaser in from lease had of the said R. as 0. resulting profits from a difference the and estate and interests gas; price purchase price the the of such in and the sale Seagraves Seagrаves proffered and tendered to said further R. said defendant willing pay to the that he was plaintiff Heard the the of the A. J. receiver for benefit W. one-eighth gas royalties under said from his desired, of the amount advance, in be com- lease if until his line should begun, taking gas actually pleted and of such could protested Green, herein, defendant to the Honorable John M. against any purchaser the sale of the at this time to other being per thereof at five destructive cents thousand cubic feet as protested against any therein; of his interest and further whereby the sale of the from the sale thereof said well prolonged by beyond should be the date of the at the next term of the contract trial on their causes merit Refugio County, Texas, District Court which convenes regular day thereby March, 1926, session 22d on the in order protect gas. gas, purchaser his of estate in said That under large very land, volume, tract exists and it is valu- right plaintiff, Seagraves, privilege able of have taking purchase, under same his contract of should the finally main case purchase decided in favor contract to his and his upheld. per “But if the should be sold receiver at five cents competing pipe line, thousand cubic feet known as the Pipe Company, purpose Houston Line which is the evident (hereto report attached) receiver, his shown Green, herein, Honorable John M. defendant then this interest Seagraves plaintiff destroyed, will be that the through five cents thousand cubic feet derived such sale pay purchase price the receiver will be sufficient Seagraves under the vendors thereof contract Pratt, above referred to. notwithstanding proffer evidence, “That facts by protect pending made to the suit litigation thereby disposition the sale enabling protect estate, defendant, him to his own the Hon- directing John entered an order in vacation orable well, the receiver to make test of the the Smith merchantable, it whether it and if have determined found any person, merchantable, discretion to sell samе at his delivery the sale and thereof the contract should long receivership should last. continue as as the taking report “And and the order of the together, appears purport of such court it further drilling order is to contract for the authorize the receiver to *11 Reports, Vol. gas pay referred to therefor wells hereinafter offset per This also was rate five cents thousand cubic feet. at the by plaintiff in protested to the extent that order herein purchaser hereinbefore protect in such as his estate as shown, purchase open certificates offered in court to receiver’s annum, par bearing per per at cent interest six and one-half by plaintiff with the on the receiver’s cer- sum so advanced this thereby drilled, prevent- tificates the offset wells should be said gas ing plaintiff’s purchaser in total loss interest as of this by report to use in which the receiver is so authorized said drilling wells, said and in connection the uncontroverted this testimony §22,000 each will cost shows that said wеlls about words, gas plaintiff, view drill —in other that which to in this by pipe him will construction of the line contracted for twenty dollars, be worth at thousand least two hundred Company approximately will be transferred to Houston Oil drilling forty-four dollars, thousand to secure order wells, plaintiff to advance the actual this is denied the moneys gas necessary, a most rea- secured a lien on at thereby rate effect result and sonable of interest and the same protect himself well all to the suit. other January, 1926, day
“That this the 6th made on Cuero, Texas, chambers, at clerical error it is dated but attached, 28, 1925, copy December and a thereof hereto ‘A,’ part hereof. marked Exhibit and made a receiverships “That indefinite that are reason of fact duration, plaintiff as to their line which this has and that completed secured the not until construction of which will gas March receive at this he is unable to take and said now; time, delivery accept that cannot thereof that he great premises, never- while in volume undеr leased quantity, as theless has its extent and certain limitations as to hearing, testimony and under undisputed on said shown vacation, the order made in of the defendant herein so during period land all be taken from said tract of entirely receivership, plaintiff his interest and will lose out, by all of therein, the sale of set reason of estate as above cubic feet. price thousand five cents the market testimony undisputed says “This further defendant are wells field appears in the case that other in this it gas from the enough well draw close Smith located well production, Smith deplete well its Smith producing any other well feet from more than thousand one ready protect interest field, plaintiff stands and this 1926\ litigation by paying for the parties beginning whether proper, March ratably as is volume protect not, completed meanwhile line is advance, any him, reason- by paying Heard A. J. W. lessor *12 completed, pipe the line is wells until royalties said from able equity proffer tender court. and his
as shown says that the order terms sаid “This defendant further drill two offset at or the receiver was directed to wells near the against protection purpose of with- lease for the lines said and, against adjoining lands, according drawals two wells on thereof, undisputed hearing the case on the to evidence this ninety sixty days wells, complete it will take between and said plaintiff period, completed and that within this will have that of, the line which has secured the construction as above stated, appears and this from the uncontradicted evidence on hearing, against plaintiff protested this said to the court gas present proposed sale of the from two thereof, wells completion drilled as offsets until the and at that date ready gas recognized he will be to take from said wells at the price, protect market will admitted be enabled to his profits interest and estate therein to the extent of the which therefrom, he would receive and that inequitable it would be unjust direct the sale from said at wells this through competing pipe dаte lines at the current rate as being plaintiff’s gas. destructive of this interest notwithstanding fact, defendant,
“That this the Honorable Green, John M. attached, as shown the order hereto has directed the receiver to contract for the sale of the from yet drilled, said wells not that the sale of the during period contracted for receivership, and for the reason stated above under such corpus order the entire plaintiff the interest of this in said purchase under his contract, prevail should he merits, the suit on its would be destroyed, and he would any be unable to derive benefit should right purchaser his as such be maintained on trial on the merits of said causes. position “That plaintiff this defendant, of this Hon- that,
orable John M. graves order, declared under his that Sea- protected sixty would be per his cent interest at five feet, cents purchaser thousand cubic but that as to his as a profits these upon were mere his contract and were protected by not the order of sale. plaintiff says
“This lengthy, and that he has directed stenographer the court’s to prepare at once Reports, Vol. hearing; right of the facts on said
statement that he has no therefrom, appeal and that the under the plaintiff has notified this that he will the well tomor- test being day row, Tuesday, January, 1926, 12th there- plaintiff says proceed after this receiver will to con-: gas during period tract for the sale of said receiver- ship, appears report from his thereon to the Honorable Pipe John M. Green will sell .Une Houston Com- pany price receivership period market for the well, two the well known as the from the Smith but yet drilled, offset wells not and in event has the required do so under order of the court and while such sales are reported approval, be hearing back to the said John Green plaintiff no is allowed this thereon the order of said plaintiff says present here- court. This that he is unable to hearing by had reason a statement facts *13 Fowler, stenographer, has not of the fact that the court O. P. yet good completеd reason preparation, as that he has and receiver, to believe and fears that during gas court, proceed period will of the make sale completed of such receivership as soon as he the test has undisputed shows evidence well known as the Smith well. The can made and the merchantableness of such test be in to exceed three hours. determined by the receiver contracted to be sold “That if is sold or court, every plaintiff has reason as this under the order of done, of said contract of sale sale will and such be to believe by (and plaintiff is this denied approved the court is thereto), opposition his heard order to be under said purchaser thereof as the in said and interest estate entire nothing him to left for destroyed, will be and there will be purchaser. litigate as such over according says that, the order further “Plaintiff made the defendant will be court, report of sale five recognized price of is market vacation, and since judge has the defendant feet and thousand cubic cents period of for the already the sale directed Green, M. probability the Honorable John receivership, in all without Court, approve sale will District as estate plaintiff, and his interest hearing part of this on the n remedy confiscated, no will have and he aforesaid will be appeal. complete in this court to file plaintiff will be able “This together his hearing, proven at such of the facts statement within........ exceptions, of the court objections to the order may request that same in order days as this court this date thereof; that the this Justice reviewed be Murray, than the Honorable John Green other defendants joined thé filed herein suits are as they may Refugio County advised of District application. this plaintiff says
“That further: gas in “(1) ordering and transfer That sale defendant, District as vacation the Judge, Honorable John M. jurisdiction, court in term in that as acted without made; time could such sale be ordered “(2) cannot That such of this State sale under statutes Judge, only by be confirmed the District the court but time; term
“(8) plaintiff says denying This him the the order privilege appearing objecting report of the sale case, to be plaintiff made the receiver in this this denied privileges one of the substantial him under awarded the law and in this instance such action of the defendant taking plaintiff’s property cause would constitute a of this with- process out due of law.
“(4) plaintiff says This that the order of the defendant on inequitable unjust erroneous, and vio- principle equity lative of receivership cases that corpus of the estate pos- should be maintained intact far merits, sible until the case shall be tried its and under the plaintiff will, order issued probability, the estate of this in all destroyed. *14 be plaintiff, therefore,
“This now seeks to have the order of the by defendant herein reviewed this means whereby may done, plaintiff this be as this has no of appeal, byis certiorari to the defendant herein.
“Wherefore, premises considered, plaintiff prays this that this Court, any thereof, may be, Honorable or Justice as the case petition immediately prеsented, whom this issue or direct to your gracious be issued to the defendant herein most writ of requiring certiorari of the defendant that he transmit or cause proceeding to be transmitted or certified the entire record upon hearing by which transcript the was had and statement facts, of days and that such record be filed herein within ........ from may this date as determine in order that this Court this may Court hearing, review the the defendant on said action of Reports/Vol. Texas Court plaintiff prays hearing that
and in this such order such of the court be revised. plaintiff prays pending “This further that the determination by directly this court of this on review an cause order issue commanding to the defendant herein further him to refrain from proceeding contracting through sale, with the or to sell the case, receiver lease, in this such and and under by this notice issue wire to the defendant. by any “That in the of this order this revision Court or . plaintiff prays: thereof, Justice “(a) jurisdiction beyond That the order reversed as the be udge of void; said J confiscatory
“(b) That it be reversed erroneous of plaintiff’s interest; this or “(c) be directed to be entered as under That such order all hearing developed upon the the and circumstances of facts by equitable, the have been entered defendant—in and should plaintiff protect herein, until the the interest the final order to determination general cause; and for relief. may protecting appropriate entered order the an “That permitting concerned, equities O. Sea- graves five cents thousand cubic feet the to take required beginning 1, 1926, in such amount as is March Railway regulations of the Commission under the statute the of said through pipe by governing lines, withdrawal guarantee payment Seagraves for same bond defendant, approved John M. or the pay one-eighth Murray, such A.P. monthly, advance, lessor, benefit of the amount actually him he Heard, until such time as tendered J. W. A. through being taking begins line con- now Seagraves by protect requiring the said bond structed, and ready royalty one-eighth to receive whether he is order as this other Court deem not, enter and to premises. equitable applicant prays alternative, issuance an “In commanding mandamus, the Honorable John writ alternative appear day Judge, aforesaid, to on a fixed Green, District why has, cause, if he should not show bartering thereof, of said the sale refrain drilling manner wells authorized offset January 6, 1926, that on such such man- *15 permanent. peremptory and be made damus forthwith issue “Further, Court that this Honorable District 1926] v. Murray, Judge, Á. and P. District John
Honorable restraining sale injunction prohibition, or a writ cause disposition of this the final until such or or barter herein. differ- further prays for all other applicant further
“Said of law may the rules be entitled which ent relief to equity.” or hearings at the showing introduced transcript the evidence
A by Seagraves. subsequently filed OPINION. jurisdiction Supreme potential Court
Actual and 5, granted, Constitution. in the terms of Sec. Art. course, delegated may, absolutely powers as are there Such “statutory regard declara- without omissions or be exercised respect Ward, W., 1063, 1068. In tions.” 285 S. Cleveland contingent made, apprehend there grants we are there as enlargement immunity legislative or a like diminution specifically of such conditions as are named. provided power, generis,
Two are classes of each sui which, jurisdiction except appellate Sec. Art. 5. There is an law,” questions law provided as extends by. “otherwise arising Appeals have in cases of which the Courts Civil regulations appellate jurisdiction, restrictions and “under such regulations Legislature may prescribe.” as the Under the bringing case of a restrictions now embodied in the statutes Appeals appeal is an to a writ of Court Civil error indispensable jurisdiction prerequisite appellate to exercise of S., Supreme Art. Court. original jurisdiction writs of
And there is an to issue the against Governor) quo (except warranto and mandamus Legislature may specified” by “in such cases as be therefor. Ancillary proper of either of the to and in aid of the use just 5) mentioned, (Sec. powers it Art. is declared may “the writs and the Justices thereof issue mandamus, certiorari, procedendo, other writs as also, and, may necessary jurisdiction,” be to enforce its power such matters of fact court shall have “to ascertain jurisdiction.” may necessary its exercise of appel- petition us not disclose a case which before does jurisdiction, exercised, for lack of generi, late sui appeal directly precludes of a error existence writ of subject-matter. jurisdiction in a case for Nor does it exhibit *16 Supreme
238 116. Reports,Vol. Court jurisdiction, nothing appear made to appellate is aid uncorrected, destroy which, impair if left will or given, given in the exercise appeal. If relief is to be it must be jurisdiction. original litem, receivership remedy That was ad in virtúe statutory 2293-97, S., provisions (Arts. 1925) plain. R. is No appointment placing the res attack is made or except, said, legis, it is no had filed at the custodia suit been time those orders were made —and the record shows otherwise. property appurtenаnt nature and the The property conditions which the is circumstanced are indicia management, etc., operation, discretion in a considerable its directions, jurisdiction authority potential included give appropriate directions to the receiver. against jurisdiction properly invoked each of That giving directions, parties point all down to the general subject-matter parties were under the of the and the jurisdiction active of the cannot be doubted. With situated, competent matter thus it was consent Judge, vacation, District to authorize the “exercise fully perform powers, make all orders and all acts as as in term S., Upon presented, Art. record now time.” jurisdictional given Ry. Cox, (Pecos
consent was & T. v. N. Co. Texas, 40, W., 606), proceedings 143 105 S. vacation general being true, disposition lawful. This of the were presented then to the District and the nature and matters given proceedings as a extent of the directions to be result of the involved, judicial necessarily use of the discretion vested him casе, In statutes. such a and to the Constitution employed, Supreme such discretion extent that original jurisdiction judgment. impose not exercise its own Morris, Texas, 226, W., 24 v. 86 S. 393. To the extent State mentioned, complaint the orders about which were made not they may granted void; improvidently have been or otherwise and, so, voidable, correction, needed, but their if erroneous must through foreign procedure prayer invoking origi- to a come jurisdiction Supreme Court. nal given orders, however, of the directions in the Some are nul- them, peril (Lyons- As to the receiver must act at his lities. Co., Texas, 468, 486, W., Hardware Co. v. Stove 88 Thomas 27 S. against 100), action him and his sureties peti- would afford Ultimately, against relief. relief tioners some them could be relief, through appeal, secured, secured but the thus would be 1926] 239 might meantime, injury result. irreparable well and, tardy, circumstances, otherwise, under the relief possibilities The jurisdiction original preclude use do Texas, 352, Ry. Muse, 207 Gulf, C. F. Co. Court. & S. 613; J., W., R., pp. L. 4 A. C. S. they involve because now mind are nullities directions
attempts delegаte and the exercise of discretion to to the receiver which, judicial, (with power essentially, imma- is and because lodged, in exceptions) judicial is a power terial the State non-delegable judges way, Art. 5 in the and thereof courts relevant Kilbourn Constitution and statutes. the 377; L., Thompson, S., 168, 190, 192, Ed., 15 C. 103 U. 26 L. 521, and authorities there cited. paragraph 2 receiver is directed
In numbered of the orders the test to make a test of No. “in the event that said and Well receiver, determines, opinion discretion of gas merchantable,” etc., etc., provided “then is it is hereby empowered is to contract for receiver authorized and length of as he the sale of said time deems for any litigant, litigant,” person or a etc. In the third not other deter- paragraph is that “if it should be numbered it ordered * * * taking receiver, upon mined that the of said test might likely prove quantities from this well in merchantable etc., injury authorized premises,” of is leased “receiver may employ he deem best directed to method and means receiver, kill еxercise of the discre- said well.” If the given, destroy he is author- tion No. thus determines Well drill, drilled, (in paragraph) ized “to or to be another cause well, again vicinity present he near of well given and meth- to location the fullest latitude discretion as into, provisions or of he enter ods terms or contracts work, regard, repayments in such and as to methods of for said killing drilling well in its either well said new said old or of place.” things receiver thus left to discretion by him further consultation are authorized to be done without Manifestly, judge. approval or or direction the court or respect destroying Well if he should use his discretion in and, destroy it, disappear, value would No. and should its belonging thus, property very the condemnation of substantial decreed, litigants, them, or some would judge executed, by person decree would be who is a a rights. authority adjudicate Like- who has no constitutional dollars, wise, matter expenditure several thousands Reports,Vol. incurring liability‘therefor, is left to the discretion not, receiver; acсordingly will, may may as is his thus permanently property leave burden or free burden the whose custody special purposes. a is in him for short time and for paragraph
In numbered of the orders the receiver is author- or cause to on the land involved ized to drill be drilled two wells 3). (other provided paragraph the one for in The receiver than “given put latitude as to whether is there fullest or not to down by employes these wells or under contract with person” some other case he shall decide to contract person” drilling required with “some other wells is he approval.” to “the submit such “contracts” court for court’s making In the event of the of such contracts and their submis- approval, provided it to the court that “no sion Thus, the receiver need be had thereon.” is authorized to decide way question deprive" oppor- which would court of an tunity statutory perform duty its constitutional to direct “respecting property” (Art. shall be done what acts *18 doing S., 1925) in advance of the of those If acts. the two drilled, by employes whether wells shall be of the receiver or contractor, very portion corpus a substantial a "may certainly thereby. be estate If consumed — encumbered — property drilling be in such condition as that of the wells is judge acting proper, proper conditions, should matter thus left decide the discretion of the receiver. opinion, questions property rights In our of substantial j udgment questions to the thus confided the receiver are whose requires judicial (Art. use of the 2297), solution function delegate power effort to to decide judice. them in coram non particularly not notice do hearing We declaration that “no respect had” to the contracts need be mentioned in numbered 1, except say paragraph seasonably if the to a be respect any question claimed materially affect- ing thereupon denied, absence of patent. process would be due mandamus, general, remedy is a whereby While person required something is officer do which he wrongfully do, exceptional declines to nevertheless in cases it properly given restraining (Bacon’s Abr., be effect. tit. “Mandamus” D, 273; Bradley, Wall., 364, let. Ex Parte 7 Ed., 19 L. 219) or one of reversal or previous amendment of a (see act Ex Secombe, How., 13, Parte Ed., 565; 19 15 L. Virginia Rives, v. Ry. 241 Co. K. T. M. 667; Texas, 175, Ed., Yett, S., 313., 25 L. Cook 100 U. cited.) W., 715, there authorities 268 S. judicial opinion that an order wherein discretion
It is our it the tribunal or officer to whom has been exercised law, solely of that dele- confided but in which use discretion is gated non-judicial officer, exceptional affords an case. to a
Accordingly, appropriate recommend that we requiring respondent, John District entered Hon. Judge, Murray, Hon. P. cause the A. to refrain from exercising authority purportedly given para- in numbered “First,” graphs respect “Second” and “Third” to the destruc- drilling respect tion of No. 1” and in “Well each other wells therein mentioned. because, opinion, And in our the other terms said orders judicial involved exercise the District discretion law, proceedings respect vested him thereto are void, not shown to prayed we recommend that all relief now against there be denied. opinion Appeals adopted, of the Commission of
judgment in accordance therewith. ' Cureton, C. M. Chief Justice. Railway Company
Missouri,
&
Kansas
of Texas
v. B.
J.
Price,
Judge,
District
et al.
No.
Decided December
(
Mandamus — engineer trains, In an of an action death collision verdict special deceased, issues, objection parties, submitted without found hour, under orders at a wait till a station left named same named; finding by jury before time so but there no court negligence proximate party this was or was the cause of the collision. Each judgment verdict, overruled, moved for in its favor on the court which the its motion set aside own the verdict and ordered a new trial. Each proceeding, brought defendant, seeks in this mandamus Supreme Court, ordering judgment to be entered in its favor on verdict. Held: (1) special judgment The verdict on the issues did warrant plaintiff favor of either or defendant without determination negligence proximate issues of special cause left unsettled (P. findings. 246). (2) power making is without order the