*1 appellant of record attorney No
appeal. Thomas Walton, Atty., and
Dan Dist. Houston, and Atty., White,
D. Asst. Dist. Austin, Atty., Douglas, State’s Leon B.
for the State.
PER CURIAM. marihuana; possession of
The offense peniten- years in the punishment,
tiary. no state- appeal contains record on
The exception. All or bills
ment of facts regular noth- appear
proceedings to be judg- presented for review.
ing is
ment is affirmed. al., Appellants, et ESTES
SHAW & OILS, CONSOLIDATED
TEXAS Appellee. Corporation,
No. 13055. Appeals of Civil Texas.
Galveston. 24, 1957.
Jan. Rehearing Feb. Motions for
On *2 pro
tiоn rata of incurred in operating, thereby preserving, said development leases. No costs are involved. *3 sought Plaintiff judgment against defend- respective proportions ants for their expenses such operating or lifting costs so it, incurred and Dallas, appellants. asked for the establish- Shipp, Lee and equitable ment foreclosure of liens DeCoux, Jacque DeCoux and DeCoux & against the undivided interests of defend- Houston; Germany, Jr., Ed- Garvin H. J. in estates, ants respectively, leasehold Johnson, Dal- ward and Renfro & Johnson security plaintiff as to for reimbursement. las, appellee. personal Plaintiff had judgment against defendants, respectively, debt, as for with against the establishment es- leasehold GANNON, Justice. respectively tates of its cotenants of “co- Oils, Plaintiff, Texas a cor- Consolidated expenses tenant’s lien for poration, brought against this & suit Shaw maintenance,” sale, with order of De- etc. Estes, alleged partnership be com- to a appeal. fendants Estes, posed Gaylord Shaw and Burnett point The first of .error is that the court against as well as Burnett Estes individuаl- rendering judgment erred in at the second ly, alleging itself to with the cotenant expiration term of court after the defendants, gas in certain two oil and lease- term at which the case was tried and sub- Texas, County, in hold estates Harris to point. overrule the mitted. We Levy The “A” wit: Lease and the Roths- Lease; part- child and with defendant Trial was commenced the 129th Dis- nership Shaw & Estes an additional lease January-June trict Court at the 1955 term. county Tuffly in the same known as the term ended with This the Sunday next be- “A” Estate Lease. Monday July fore the first of 1955. The following term commenced with the first petition sets out since about 1955, July, Monday of and ended with the April 1950, 1, plaintiff operated has said Sunday Monday before the next first leases, reasonable, proper incurring 1956, January, January-June, when another thereof, necessary expenses by reason The following term commenced. which costs have inured to the benefit chronological pro- reflecting statement cotenants, as defendants not from the ceedings in cause from the commence- production of oil alone but as well becаuse judgment, ment of trial the rendition of operated preserve such has appellee’s brief, as set out is unchal- the leasehold estates of all cotenants alike. adopted by and is us lenged as fair re- alleged shortly It is further that until be- of the record: flection filing fore the the suit the oil run came “(1) The cause on for trial at gone pipeline said leases has to the undivided interests in the leasehold for the account of the several owners estates, January-June before the Term Court, a jury being [1955] and on June waived. proсeeds pipeline and that the of said sales testimony “(2) The oral before the Court have been distributed without deduc- on concluded at 4:30 June operating respective tion for stipulated “(3) Appellee owners of the undivided It was interests in said estates; report produce leasehold an audit nevertheless would and that defend- ants, both, accepted by Appellants each and while would be retaining same said proceeds, expenditures proof actually have refused to account to or made plaintiff рroper for their lease involved propor- reimburse herein. firmly rule law such follows: “No is more approved heard “(4) The jurisprudence established in the of this state trial stipulation continued ju than par- that courts can exercise their proceedings and directed further personal risdiction to hear and determine two within written briefs
ties to submit
property rights
place
at the time and
fixed
within
follow
reply
weeks
briefs
by the statute or rules
court authorized
one week thereafter.
by the statutes. We
think the rendi
do not
furnished
report was
“(5)
audit
Sаid
tion of the
in this case on Decem
to the Court
submitted
June
18, 1928,
ber
during the third term of the
in connection
supplemental certificate
*4
court after the term at which the case was
16,
August
on
was submitted
therewith
submitted,
any
heard
by
and
was authorized
1955
1955,
July-December
was in the
which
only
statute or
rule. The
un
court
statute
Term.
authority
by
der which such
is claimed
re
spondents
2092,
is subdivision 28 of article
orig-
Appellee’s
“(6) The
received
Court
1925,
prac
fixing
Revised Statutes
of
rules
1955,
Appellants’
1,
July
and
inal
on
brief
having
in
tice
district courts
counties
1955,
Appel-
16,
July
and
on
original brief
only
two оr more district
with
civil
courts
24, 1955, and
reply
August
on
brief
lee’s
jurisdiction,
the terms of which continue
of
consideration
proceeded with
thereafter
* * *
longer.
months or
This
three
of
portion
Thus,
it is seen that
said case.
proceed
statute
authorizes the court to
part
briefs were
of the
the evidence and
hearing
with the trial
of
and
a case at the
July-De-
during the
Court
to the
submitted
of
next
term
the court when the term of
Term.
cember 1955
n courtat which the trial
began
ends before
February
on
announced
“(7) The Court
completion
hearing.”
the
of the trial or
1956,
January-June 1956
29,
(during the
Boyd
1929,
Rouff
When
v.
was decided in
for further
cause was set
Term) that such
county
Rule 66 for the district and
courts
A.M.,
10:00
at
March
hearing on
in
rule
was
effect. That
read:
effect,
parties
and
to that
notified
and
“
objection] the
without
upon
date
such
[and
‘A cause
has
been submitted for tri-
appeared through their re-
parties hereto
judge
al to the
the law
shall
on
and facts
be
presented
argu-
oral
spective counsel
determined and
rendered therein
March, 1956,
day of
28th
On the
ments.
term
it
during the
at which
has been sub-
of fur-
the submission
directеd
the Court
mitted,
days
and at least two
the
before
submitted,
Appellee
briefs
written
ther
term, if
end of the
it has been tried and sub-
received,
supplemental
Court
the
day
time,
before that
is
mitted one
unless it
6, 1956,
Appellants
and the
April
brief on
trial,
continued after such submission for
received,
submitted,
their
Court
and the
parties placed
by
on
the consent
the
April
on
reply thereto
in
brief
record,
event a
and in such
statement of
exception
pre-
facts and bills of
shall be
sequence
Subsequent
above
to the
“(8)
request
upon
writing
in
pared and filed
rendered and an-
judgment was
events
of
”
party.’
either
2, 1956,
May
by the Court
nounced
January-June 1956 Term.”
during the
course,
repeal
Rule
has been
express counterpart
find no
upon
ed and we
rely
the recent case of
Defendants
rules,
present court
but we do find
Garrett, Tex.Civ.App., 283
in the
S.W.2d
v.
Coats
counterpart
substantial
British Gen
the
Art.
opinion follows
289, which
1925, in
330(j),
Rule
Ripy,
Revised Statutes of
Tex.Com.
Insurance Co. v.
Fire
eral
That rule
Rules of Civil Procedure.
The Texas
3H proceeded parties, ing matter hardly or other we see how ” * * them position at the term of the court are in juris- next to assert want of 330(j) laid diction present When we Rule consider the court to render the namely appealed background, its historical from. Had all of the evidence special Act, practice old Rule introduced at the two 1955 terms district government of trials formally court been tаken as reintro- courts, 1923, R.S.1925, pro- county parties appeared duced when Art. before the court, we viding during term, for extension of terms of court surely par- the 1956 present Rule 330 are convinced that under ties would ju- not be able claim want of (j) the law is the same as announced risdiction because a trial would have been case, speak- Ripy namely, generally very commenced at the term which judg- at entry judgment sub- ing That, however, the rendition or ment was rendered. in our sequent expiration opinion, legal of the next term par- effеct of what the is, begins when, trial pursuant after the the absence ties did to due notice of the term, court, entry extending of an they appeared order juris- and invoked its *5 authority without of law. diction to judgment render on the basis prior the evidence submitted at the terms. But we do think the law as an not present We feel the distinguish- record is applies nounced in the cited cases to this upon able Rouff, Ripy from those which the Here, we record. have circumstances decided, and Coats cases were for in each any which not obtain in did оf the cases to judgment of those cases was entered after referred, namely, which have was we what succeeding the next term at which the trial by in effect the the case the resubmission of parties was commenced again without the implied parties consent of the at the Janu appearing before the court without Here, ary-June 1956 term. at the second parties, expressly impli- of the either by or succeeding term after that at which the tri cation, jurisdiction the invoking the court commenced, parties pur reappeared al the judgment to render at such term. by presented the suant to notice court upon arguments oral based the evidence See the Connecticut case of Whita at the two 1955 terms of the submitted Co., 434, ker v. Cannon Mills 132 Conn. 45 Additionally, pursuant (cid:127):ourt. to direction 120, 122, explaining A.2d that under the objection, par court and the without involved, quite statute there which is similar during ties submitted written briefs the jurisdiction 330(j), our Rule lack of January-June 1956 term. The effect of judgment expiration render after of the arguments these oral and of the written succeeding term next thе term at which trial parties was, course, the briefs of to in jurisdic was commenced is not for want of jurisdiction the at the voke court subject person, tion of the matter but of the judgment 1956 term to render in favor of hence In be waived. that case parties, respectively, invoking the so the plead was held that a defendant who filed This, think, jurisdiction. we amounted to participated in ings and a further hearing by agreement a resubmission the case expiration by after of the time allowed stat the evidence the basis of theretofore devеl rendering judgment ute waived the stat were, and, oped the as it commencement ute, claim and could not January-June new trial at 1956 of a the jurisdiction. invalid for lack of convinced, anything are in Rule term. We contrary (j) notwithstanding, the 330 quote the Connecticut court: law, contemplation least, at under the Shaw, 639, Spelke a 117 facts of this record new and “In v. Conn. particular 169 A. 787, interpreted trial was commenced at the we this statute as requiring a different Jan that, Judgment is having 1956 term. where term of court divided uary-June into sessions, at must that term at the invocаtion the be rendered rendered at been 312 the case tried sought recoupment;
the same session which which it and the one, pointed parties stipulated we or but succeeding the next might audit page by proof A. at taken (117 page expendi- out at 169 the court as Conn. parties, that, actually the tures 788) having by plaintiff been consent made might decide express implied, court respectively. of the leases Further, time; Ferguson stipulation, the case at later the matter of the we Sabo, expenditures 162 A. reasonableness оf v. 115 Conn. was left to the court. requirement prejudice of the statute We see no stated that harm or merely jurisdiction from the might lack of state of the pleadings, he waived. The points of expiration fixed does error addressed after the of the time are over- thereto subject ruled. pertain matter but to not Douglas & Foley George
parties. A. See 377, 380, Bro., Inc., A. Conn. Except for the dissallowance of certain correspondence trial From the between items which identify, we are unable to judge for the defendant and counsel personal court rendered judgment against defendant from the fact that thereafter defendants chargeable against sums participated, in further pleadings and filed respective their leasehold interests on ac- May last late as hearings, the “operating expenses.” count of The rec- did, find, properly as it the trial court could ord “operating expenses” shows that these require had waived that the defendant part, least, consisted at unsuccessful sup (Emphasis of the statute.” ments reworking operations on one of the wells рlied.) resulted salt *6 water, and which well has since been aban- C.J.S., Judgments, of the text 49 See also part ap- doned. A charges of the for which stating: “It has been held page § pellee granted may may was recovery not or that, expressly implied- parties or the where be an account of these unsuccessful re- consent, ly judgment be rendered aft- a ” operations, which, course, * * working of did term; expiration of the *. the er any benefit not or continue leasehold estate Then, too, of defendants. the pleading fully all of the Aftеr plaintiff’s favor for the sum total of all recovery, relied for a upon which it facts expenses operating chargeable against its amount, necessity for, and including the cotenants, separation respectively, without expenditures by of the made reasonableness expenses of the as between the three leases cotenancy, plaintiff benefit of the for the it Further, the judgment involved. establishes statement accounts a detailed of its attached equitable grants aud of an foreclosure lien leases, and several as a mat relating to the expenses on all the leases for all incurred of were, it at supererogation, as also ter of by plaintiff regard any particu- without to compliance Rule an affidavit with tached lar in connection with lease the of sufficient, T.R.C.P., ap if that rule be expenses which the were incurred. Differ- claims, present to make the plicable the to ently put, plaintiff money the recovered upon a sworn account. Defendants suit one judgments against defendants, respec- the plaintiff’s demands, claims, complain that tively, single operat- representing for sums action were not of a character and causes expenses by ing incurred it in lifting the oil the of Rule 185. within terms We embraced leases, and all three of such sums However, the record shows that the agree. against leases; made liens all three are so introduced in was not evi account sworn plaintiff that, example, up for winds with upon by plaintiff, wise relied in or dence equitable against lien defendants’ court, inter- by proof just the or taken Levy for contrary, in the leаse plain On the ests in- of the claims. ness testify by in operating witnesses to introduced curred it Rothschild and tiff necessity Tuffly charges leases. reasonableness
313 spend him money him generally- jurisdictions, In other necessarily spent, this but further than contribution right of speaking, a cotenant’s implied there is no The cause of contract. personal a does entitle him not recouped action ground allowed in such is not associates, cases must he but against his received, ed on his benefits con though this be out or adjustment in an of accounts necessary recovery, sidered an or element property cotenant’s interest in the for he would not in law to Amer.Jur., title be authorized proceeds. quote 14 spend money for his cotenant for a useless Cotenancy, Page 110: Sec. unnecessary improvement; but course, absence clear, “It is cause is founded on reimbursement no has common agreement a tenant money necessarily, beneficially spent.” or his personal against claim for contribution With necessarily and money reference to reim- Any compensation associates. beneficially spent, court continues: from his cotenants’ bursement must be made “ * * * principle has contribution proceeds, or property or its interest speculation no clement of In cases it. him on by deductions from claims implied person this kind seek it is that the profits or waste.” account rents or his ing authority1 from contribution had expend money ac Texas, cotenant that was however, states, including In some tually spent. if he had It is same as imply contract it seems law will that the by been cotenant to actually instructed his his reimburse part cotenant to on the of one expend im money him in that much bene- moneys necessarily and co-owner for implied proving the lot. This much is spent common benefit of the ficially for the Luttrell, (Emphasis supplied.) Tex. law.” Because Stephenson estate. known, unnecessary ap- principle is so well it is In case S.W. authority proposition to cite for the expended a sub- peared had that a cotenant expense in speculative incurring cotenant money for the benefit stantial sum of develop exploration connection lot, fill it to property, in order to common oil, properties is gas, ment of and mineral territory Gal- grade surrounding *7 personal judgment against to a not entitled preserve and Island so its value veston as to reimbursement, only to his cotenant for but complete loss keep becoming a to it from production and be out if reimbursed nuisance, life public to the and “a a menace of refer, production We of results. when city.” the and health of the inhabitants course, only rights cotenants inter necessity costs when incurring The for the only. relation growing out of the sese they nature of an were incurred was in the territory emergency because at the time in ac- being filled surrounding the was lot appears from the authorities that It “ plan; ‘it could cording general and to legal in the effects is a difference there except cost at a not have been filled later against in favor one which flow cotenant in ex- entirely prohibitory, greatly because “necessarily money or bene from another being- property the after cess of the value of money speculatively ficially spent” and from ” filling incurred in the lot filled.’ The costs spent, of mere fact that such regardless the “ in- becoming valueless and saved it ‘from expenditure may in en result speculative equal least to value a sum at creased its It of the common estate. seems hancement ” expense.’ right The of the cotenant
the by the Texas authorities be established to expense personal judg- to a incurring the spent by moneys a cotenant “nec for that ratably by his as- for reimbursement ment beneficially” in the essarily interest of and Supreme upheld by the Court. sociates was estate, such cotenant has a common the opinion: explanatory parts the quote proportionately by reimbursed to be right associates, right and that such is to a between implies contract him his “The law and, also, that such cotenant, judgment; personal authorizing and his cotenant] [a producing by plaintiff security of an incurred in entitled to the claims are in oil from result one lease can interest equitable cotenants’ lien on the upon de- equitable lien establishment of an different matter is The the common estate. and spent in fendants’ other leasehold interest in money speculatively in the case of minerals, be have to for different leases. The case will developing prospecting for and proper in- de- remanded to the trial for court a cotenant production. In cases such principles. light termination in the of these reimbursement expense to curring is entitled associates his the share of out of production. actual plaintiff record shows The produc pipeline delivered to all of the the appears that present case it In the up including tion and for to date certain re defendants the the recoveries the cotenancy, according benefit of to the al plaintiff spectively, which the proportionate interests, insisting the without and foreclosure lowed the establishment right proceeds on its claim a to the embrace, part at liens, equitable said for reimbursement for ex to efforts moneys speculative least, spent in penses delivering incurred in lifting and plain is It estate. preserve common the pipeline. may may tooil It not or or promise implied no law there possible plaintiff even desirable part of a cotenant agreement expense segregate so out of its entire if unsuc expenditures such reimburse for much of producing it as was incurred in expendi plain such cessful. It is also particular oil, proceeds of which have the establishment basis for tures form no gone accepted by to and been defendants cotenants interest equitable liens on the however, benefit; appropriated to their own estate. in the common view, accepted in our when defendants proceeds appropriated these them all, involved, leases each and accepted benefits of their own use and beyond had all material times at extended estate, plaintiff’s contribution to the common primary being kept their terms and were equity implied in law there arose subject kept being alive and were alive upon part re defendants to contract only by production. production, Absent plaintiff proportionate imburse their they In would have ceased and determined. part reasonably lift of all costs incurred in main, expenditures by plain made very oil, proceeds ing producing the reimbursement, tiff, for which it seeks were accepted. have the defendants beneficial, e., necessary necessary to i. Otherwise, the defendants would be uncon preserve by production, the common estate scionably unjustly enriched at the ex *8 they because resulted in such and benefiсial feel, plaintiff. pense as We do not con preservation. We satisfied that all such are defendants, by plaintiff’s rights tended necessarily expenses incurred which were charge would be limited this account to on by keeping common estate to a beneficial production. on future through entitle it in existence views, personally by arriving foregoing In at the in ad plaintiff reimbursement its to and, well, expressly cited, the authorities cotenants, right dition to we as that such equitable following: considered the Batson recovery ought secured an have v. to be Wilson, Tex.Civ.App., satisfied, Coley & 59 are likewise S.W.2d hpwever, lien. Co., 445; Hardy respect Burnham v. Oil not Tex.Civ. this is true to so much 330; Crenshaw, App., Myers actually 147 S.W. v. expenditures as did not ex 1125; estate, e., Tex.Civ.App., 116 S.W.2d v. reworking leasehold i. White tend 272, Smyth, 147 Tex. 214 S.W.2d which were unsuccessful and 5 operations re 1348; Superior pre Co., only in water and neither Willson v. Oil salt A.L.R.2d sulted 947; Wynn Tex.Civ.App., estate nor were beneficial 274 S.W.2d v. served it. 778; theory 25 Tex. Eaton v. Flannegan, know of no under which Ruther- we But
315 247; possibly represent specu- Estes part whole or in ford, Tex.Civ.App., 163 S.W.2d expenses, lative Tex.Civ.App., totaling Oils, said remittiturs Consolidated v. Texas Appellee, accordingly, prays $39.52. 272; Taylor, Tex.Civ. Gray v. 266 S.W.2d we set aside Gurley, judgment reversing our former 891; v. Hanrick App., 138 S.W.2d court, and remanding the cause to 347; v. the trial 458, 54 S.W. 93 Tex. Johnston 469; and that modify here we and reform the 204 Tex.Civ.App., S.W. Johnston, judgment in with accordance the views ex- S.W.2d Tex.Civ.App., 6 Putty, Putty v. pressed in opinion original our Tex.Civ.App., submis- 194 Sell, 136; v. Schluter appellee’s sion. We have concluded that N.J.Eq. Weber, 123 125; Lach v. S.W.2d motion is meritorious and that should be Harriy L. 417; McCurdy v. A. 197 granted. Tex.Civ.App., 198 Co., Drilling Edwards Refining Co. 609; & Oil Ashland S.W.2d is, therеfore, Our judgment former set 74; 86 Bond, 696, 263 222 Ark. S.W.2d aside and is court trial Common, Subsec Tenancy in C.J.S., § Ap- modified, reformed and as follows: f; Cotenan Amer.Jur., title and tions a pellee’s money recovery appel- total against 109; Tex.Jur., Sec. cy, page Sec. lant, Estes, severally, jointly Shaw & and 458; 12-13. Jur., pages 28 Tex. Sec. page $2,001.99 is reduced in- to the sum of per terest thereon at rate annum of 6% Reversed remanded. May 2, 1956, paid. Appellee’s until money recovery against in- Burnett Estes CODY, J., sitting. not dividually $1,443.08 is reduced the sum of together with interest thereon at the rate Reheаring On Motions for per May 2, 1956, annum from until 6% paid. Appellee’s for ex- cotenant’s liens GANNON, penses operation against and maintenance Justice. money the several leases secure its re- parties All have filed motions for re- covery against Estes, jointly Shaw & hearing. established, severally, hereby fixed are Levy against follows: A. Lease to as appellee, Texas motion of recovery secure the sum of of its $862.26 Oils, exception to the Consolidated takes Estes, jointly against & several- Shaw only opinion of the in so far as the ly; against the Rothschild Lease to secure is cause is reversed and remanded. Error recovery against its the sum $580.82 in so much of the confessed Estes, severally; jointly & Shaw below fixes and establishes and the court Tuffly A against the Lease to secure the equitable against all of lien forecloses recovery sum of its against Shaw $558.91 leasehold estates involved the total Estes, jointly severally. Appellee’s & expenses operating incurred in all of the expenses cotenant’s liens leases, appellee and admits that several against and maintenance the several leases equitable liens the several entitled to money recovery against secure Bur- respectively in leases *9 Estes, individually, hereby nett are fixed particular operating each lease. curred established, follows: against as appellee Further, demonstrated to our has Levy A. secure the sum Lease to of $862.26 all specu from the record that satisfaction Estes, recovery against of its in- Burnett judgment expense included in the lative dividually; against the Rothschild Lease production not result in and in did recovery secure the sum $580.82 the life of the leases prolonging Estes, individually. against Burnett such separated carefully and prolonging result have considered did able leases, appellants, and has rehearing offered to for lives motion but find recovery which might items without merit and it is refused. remit aside; judgment set Former reformed, and court modified the trial affirmed; reformed, motion as modified and appellants refused. rehearing
CODY, sitting. J., not al., Appellants, OIL COMPANY et
HUNT Appellees. al., D. KILLION et
S.
No. 6910. Appeals of Texas. Civil
Texarkana. 7, 1957.
Feb.
Rehearing Denied March
Ramey, Calhoun, Hull, & Brelsford. Smith, Smith & Truman Warren and War- McDonald, ren Tyler, Shank, Dedman & Payne, Dallas, appellant. Dallas, Allen Wight, Spruiell, Lowry, Lasater, Tyler, appellee. Potter & FANNING, Justice.
(cid:127) Company Plunt Oil and Hassle Hunt County Trust sued Smith Livestock Auer tion, Killion, Trinity S. D. Universal Insur- Company Judge Price,- ance Ned Coun- Judge ty County, Texas, of Smith to recov- er on certain two livestock Commission Merchants Bonds. Lum Brothers Stock- Inc., yards, E. Burge Bill W. Gunn in- tervened, asserting similar causes of action the same A defendants. trial be-r court, jury, fore without a resulted in a plaintiffs and interveners *10 nothing against should take the defendants. trial court filed findings of fact and of law. Plaintiffs conclusions and inter- appealed. veners have