Cox v. Sinclair Gulf Oil Co. ( 1927 )

^* Writ of error refused November 30, 1927. On a former appeal of this case, reported in 265 S.W. 196 (writ of error refused by the Supreme Court), this court held, in reference to the trial court's sustaining certain exceptions of misjoinder of causes of action and of parties defendant, that appellants' petition alleged a good cause of action entitling them to a cancellation of the entire lease involved, and against all defendants, if the facts alleged were established, for failure of certain of the defendants, upon whose acts all defendants relied to keep alive their respective segregated portions of the lease, to comply with the implied covenants of the lease contract to diligently develop the leased premises for oil and gas, and for abandonment and negligent handling of discovery wells upon the drilling of which all defendants relied to keep alive their respective segregated portions of the leased premises, and reversed and remanded the cause for trial upon these issues. When the cause again reached the trial court appellants amended their pleadings so as to eliminate the alternative causes of actions asserted against each defendant or defendants holding a segregated portion of the lease, which causes of action were held by this court to have been improperly joined in this suit, but repleaded the same cause of action for cancellation against all defendants as above stated. Appellees again filed as a plea in abatement misjoinder of parties defendant and causes of action, which plea the court heard along with the trial on the merits of the case, and at the conclusion of appellants' evidence held:

"As a matter of law that the instrument sought to be canceled was a conveyance of an interest in real estate, namely, the oil and gas in place and that the title conveyed was a determinable fee and that as an incident to that character of title the said Bailey had a right to convey the right and title obtained under said lease, to him, and to others, and that he had the right to segregate the land described in said lease and convey the segregated portions claimed by said defendant and that they thereby acquired the right to develop their segregated portions without reference to whether or not the lease as a whole had been developed in accordance with its express and implied covenants and to hold said segregated portions if properly developed by them respectively, and that plaintiffs' right of action, if any they had, was against each of said defendants separately and that joining them in this suit is a misjoinder of parties defendant and causes of action and that the plaintiffs upon the announcement by the court of its conclusion that there was a misjoinder of parties defendant and causes of action herein having failed and refused to elect as to which of the defendants they would proceed against this case was properly dismissed from the docket."

The finding of fact upon which this conclusion is based and the conclusion itself wholly ignore and do not adjudicate the cause of action alleged by appellants, and the disposition of the case by the trial court on the plea in abatement is in the face of our former decision reversing and remanding the cause; and we therefore again reverse and remand the cause, with instructions to try on its merits the cause of action asserted by appellants against all defendants as pointed out in our opinion on the former appeal of this cause.

Reversed and remanded, with instructions.

BAUGH, J., not sitting.