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of them die, if the cause of action survive to death being entered upon the record, the suit the surviving plaintiff or plaintiffs, and against shall, at the instance of either party, proceed the surviving defendant or defendants, the suit in the name of the surviving plaintiffs or against shall not abate by reason of such death, but the surviving defendants, as the case may be." upon suggestion of such death being entered Article 1886. “Where in any suit the plaintiff upon the record, at the instance of either par- shall die before verdict, if the cause of action ty, his agent or attorney, the suit shall pro- be one which survives, the suit shall not abate ceed in the name of the surviving plaintiff or by reason of such death, but the executor or plaintiffs or against the surviving defendant administrator, and if there be no administra. or defendants as the case may be."

tion, and no necessity therefor, then the heir

of such deceased plaintiff may appear, and, Section 38 of the act reads:

upon a suggestion of such death being entered "That in all suits where the plaintiff may die of record, in open court, may be made plainbefore verdict, if the cause of action survive, tiff in such suit, and the suit shall proceed in the suit shall not abate therefor, but it shall his name." be lawful for the legal representative of such

Article 1888. "Where in any suit the defendplaintiff, his agent or attorney, to appear, and ant sball die before verdict, if the cause of upon suggestion of such death being upon rec- action be one which survives, the suit shall ord, such representative may be made party not abate by reason of such death, but, upon to such suit, and the same shall proceed in a suggestion of such death being entered of his name; but if no such suggestion be made, record in open court, or upon a petition of the as aforesaid, at the first term of the court plaintiff, representing that fact, being filed with after such death, it shall be the duty of the the clerk, it shall be his duty to issue a scire clerk, upon the petition of the defendant, his facias for the executor or administrator, and. agent or attorney, to issue a scire facias, which in a proper case, for the heir of such deceased shall be served upon the legal representative defendant, requiring him to appear and defend of such deceased plaintiff, requiring him to ap. the suit; and, upon the return of such service, pear and prosecute said suit, and after the the suit shall proceed against such executor, service of said scire (facias?) if he fail so to administrator or heir, and such judgment may do, during the first four days after the meeting be rendered therein as may be authorized by of the court to which such scire facias is re- law." turnable, the defendant may, on motion, have such suit discontinued; and in cases where It will be noted that in the original act, executors or administrators shall be plaintiffs sections 38 and 39 prescribe the practice in any suit, and shall die or cease to be such in cases in which the sole plaintiff or deexecutor or administrator before verdict, tbe suit shall not abate therefor, but the suit may fendant dies and that the corresponding arbe continued in like manner by the person suc- ticles 1886 and 1888 in the Revised Statutes ceeding him in the administration of the same

are likewise limited to such cases. Section estate, or the suit may, in like manner, be dis- 36 of Act 1846 and its corresponding article continued."

1890, in the present codification prescribes

the practice in cases in which there are two Section 39 of the act reads:

or more plaintiffs or defendants. It is thus "That in all suits where the defendant may apparent that, in undertaking to modify the die before verdict, if the action survive, the common-law rule that death of a party suit shall not abate therefor, but upon a sug: abate the suit, the legislative authority bas gestion of such death being entered upon the record, in open court, or upon a petition of the prescribed a procedure in cases where there plaintiff representing that fact, being filed in are two or more plaintiffs or defendants difthe clerk's office, it shall be the duty of the ferent from that prescribed where there is clerk to issue a scire facias to the legal repre- a single plaintiff or defendant. See Townes sentatives of such defendant, and upon the on Pleading (1st Ed.) p. 445, and McAllen v. return thereof executed, such representative Crafts (Tex. Civ. App.) 166 $. W. 3. shall be made a party to such suit, and the same shall proceed against him; and in case where

Articles 1886 and 1888 deal with cases in an executor or administrator shall be defend- which there is a single plaintiff or defendant, and shall die, or cease to be such executor ant and abrogate the common-law rule of or administrator, before verdict, the suit shall abatement therein, provided the cause of not abate therefor, but the suit may be con- action survives and permits the substitution tinued in like manner, against the person suc. and prosecution or defense of the suit to be ceeding him, in the administration of the same."

continued by or against the legal representaThese provisions have been carried forward tives of the decedent or, in a proper case, by in the subsequent codifications. Those por

or against his heirs. tions thereof pertinent to the question pre

Article 1890 deals with cases wherein tbere sented appear in the Revised Statutes of 1911 are two or more plaintiffs or defendants, as articles 1890, 1886, and 1888, respectively, and in the case of a deceased plaintiff and and read as follows:

survival of the cause of action to the surArticle 1890. “Where there are two or more sion of the English statute and provides that

viving plaintiffs in effect adopts the proviplaintiffs or defendants, and one or more of them die, if the cause of action survive to the the suit shall proceed in the name of the sursurviving plaintiffs and against the surviving viving plaintiffs. In cases wherein one of defendants, the suit shall not abate by reason the defendants dies with survival of the

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(248 S.W.) ants, it provides that the suit shall proceed be and the same is hereby dismissed and that against the surviving defendants. As to a the defendants, and each of them, go hence deceased defendant, this does not seem to without day, and that they recover of and from have modified in any material respect the the intervener, M. L. Naquin, trustee in bankrule as it then existed at common law, as said plaintiff, Wm. R. Chaffin, and J. A. Esca

ruptcy, in his said capacity as trustee, and the applied to actions in tort for property dam- jeda, T. C. Lyons, and J. S. Daugherty, sureage, wherein each defendant was answer-ties upon the cost bond of said Wm. R. Chaf. able for the wrong. This article makes no fin, filed herein, all costs by them, respectively, provision whatever for the substitution of in this behalf incurred, for which they may the legal representatives or heirs of a de- have their execution." ceased party, but says that “upon suggestion

Subdivision A of the twenty-fifth assignof such death being entered upon the record,

ment reads:
the suit shall, at the instance of either party,
proceed," etc. (Italics ours.)

"The action of the trial court in rendering [3] The death of Yale had been suggested, judgment in favor of E. H. Yale, deceased, and the cause of action survived against the re- bond, after suggestion of death and notice

against plaintiff and the sureties on his cost maining defendants, the motion to dismiss thereof, was wholly erroneous, illegal, and void, by the Fidelity & Deposit Company in effect and should be set aside.” was an insistence by it that the cause proceed against the surviving defendants, and [7] There seems to be no separate propothe plaintiff refusing so to do, the motion sitions submitted based upon these two aswas properly sustained. Yale was not a nec- signments. However, all assignments were essary party to the suit, and it could be re submitted as propositions. The two assigncommenced against his executrix.

ments quoted do not undertake to state the [4] In so far as the intervener Naquin is reasons why it is contended there was error, concerned the order of dismissal was cor- and we are left to conjecture as to the point rect, for the further reason that, upon the appellants make in this connection. But the date set for trial, he failed to appear, either form of the judgment was incorrect. As to in person or by attorney. This alone abun Yale, it should have ordered the abatement dantly authorized the dismissal of his in- and dismissal of the suit on account of his tertention.

death. Yale being dead, there was no au[6] In view of Chaffin's bankruptcy and thority to render judgment in his favor for the appointment of Naquin as the trustee of costs. bis estate, it should be said, in explanation

The judgment will be reformed so as to of our action in passing upon the merits of correct this matter. No doubt the trial court Chaffin's complaint against the order of dis would have corrected this inaccuracy, had missal, that he alleged that a part of the its attention been specifically directed thereproperty converted was exempt from execu- to. For this reason the costs of appeal will tion. This allegation shows such an inter- | be taxed against appellants, notwithstandest in him as would authorize the prosecu- ing the reformation. All other questions pretion of the suit by him with respect to the sented are regarded as immaterial and withexempt property, notwithstanding his bank- out merit. ruptcy and the appointment of Naquin as

Reformed in the particular indicated, and trustee.

affirmed. The rulings of the court made on March

On Rehearing. 4, 1922, become immaterial, in view of the

In their motion for rehearing, appellants rulings above made. Furthermore, they in

say: volve an adverse finding of fact against appellants, which the evidence warrants, and

“The appellants, and each and both of them, this court would not be justified in setting pressly, the issues made, as stated by the court,

waived and conceded by implication, if not exsame aside.

that is whether or not the Houck-Dieter Com[6] The action of the court in appointing pany was the agent for the brewing company, an attorney to represent the brewing com- and in effect conceded they were not, and no pany, after the service of citation by publi- question is or could be presented to this court cation, presents no error. Article 1941, Re- that would be material in this appeal, as to vised Statutes.

As to those assignments the agency vel non of the Houck-Dieter Comrelating to a motion filed by the plaintiff on ing company was engaged in business in other

pany. Appellants baving alleged that the brew. September 5, 1921, it does not appear that counties in Texas proceeded without objection the action of the court thereon was ever in to have other process issued, and such issues voked nor acted upon by it. The eighteenth cannot legally be raised in this court.” assignment reads: "There was error in the action of the court

This admission narrows the question of juin dismissing said cause as shown by the for: risdiction over the person of the brewing lowing provisions of said order, made on March company down to the service of the alias 1, 1922, to wit: It is hereby considered, or- citation issued to Webb county and served on dered, and adjudged by the court that said suit Joe Moser. The sheriff's return states that

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it was served on Joe Moser, “the duly au-, thorities, this citation, by reason of such thorized local agent for service on said Wm. omission, was insufficient to support a deJ. Lemp Brewing Co., at Laredo, Webb coun- fault judgment against the brewing comty, Texas."

pany. This defect in the citation was not It is earnestly insisted that the service of called to our attention, and was not obserythe alias citation upon Joe Moser, as showned by us until this time. by the sheriff's return was sufficient of itself The motion for rehearing is overruled. to authorize and require the rendition of the default judgment. In this connection it may be well to state the fact not shown in the original opinion, that the citation did not give the name of Moser as the agent of BYNUM V. COLQUITT et al. (No. 10055.) the brewing company in Webb county; and the further fact that the petition of Chaffin, (Court of Civil Appeals of Texas. Fort Worth. upon which the citation was issued, did not Dec. 2, 1922. Rehearing Denied Jan. 20, allege the agency of Moser in Webb county.

1923.) The allegation of the petition was:

1. Mines and minerals 5-Invalidity of oll "That defendant Wm. J. Lemp Brewing Com and gas permits and leases on public school pany is a corporation duly incorporated at this land held not shown. time, and upon the dates hereinafter mentioned

In trespass to try title, brought by the has and had an office and agent in El Paso purchaser of a school survey claiming ownercounty, Texas, and is now engaged in business ship to fifteen-sixteenths of the oil and gas at El Paso county, Texas, and other points in in the land, relinquished by the state to purthe state of Texas, and that the Houck-Dieter chasers of public free school lands by Acts Company, which resides in El Paso county, Tex- 36th Leg. 28 Called Sess. 1919, c. 81. (Veras, is the duly authorized agent and man, non's Ann. Civ. St. Supp. 1922, arts. 5904016ager of the business of said defendant, Wm. J. Lemp Brewing Company in the county of Ei 5904034), where it appeared that oil and

gas permits had previously been issued to othPaso, Texas."

ers covering the land, claimed by plaintiff to be In this state of the record we are clearly permits had not joined in the relinquishment of

void because the husband of the holder of the of the opinion, under the authorities cited in prior permits nor in acknowledgments of pow. the original opinion, that judgment by deers of attorney under which third persons had fault against the brewing company, based acted thereunder, plaintiff held not to have upon the service of the alias citation upon supported the burden of showing that the forMoser, would not be proper, unless proof mer permits and leases were void, since it will was made aliunde the sheriff's return that be presumed that the several relinquishments Moser was the appellant's agent in Webb were accepted by the public land commissioncounty.

er in conformity to his rules and regulations.

and since the permits were not necessarily com[8] But whether that conclusion is correct

munity property. or not there is another conclusive reason in support of the trial court's action respecting 2. Mines and minerals Om5–Purchaser of pubthe default judgment. The statute requires

lic school land could not take advantage of that the citation "shall state

defective previous relinquishment of oil and names of all the parties.

Article

gas permit, the state not complaining. 1852, R. S. It has been repeatedly held that ing a right in the oil and gas under Acts 36th

A purchaser of public school land, claim. a citation which failed so to do will not sup- Leg. 2d Called Sess. 1919, c. 81 (Vernon's port a judgment by default. Some of the Ann. Civ. St. Supp. 1922, arts. 5904016-5904034) cases to this effect are as follows: Burleson upon whom the burden rested of showing that v. Henderson, 4 Tex. 49; Heath v. Fraley, previous permits and leases to third persons 50 Tex. 209; Higgins v. Shepard, 48 Tex. were invalid, could not take advantage of the Civ. App. 365, 107 S. W. 79; Bilby v. Rodg- fact that a prior relinquishment of a permit to ers, 58 Tex. Civ. App. 432, 125 S. W. 616; a third person was ineffective as not being Moran 0, & G. Co. v. Anderson (Tex. Civ. joined in by the husband of the holder of the App.) 223 S. W. 1033; McCaully y. Bank permit, neither such third person nor the state

complaining. (Tex. Civ. App.) 173 S. W. 1000; Fire Ins. Co. v. Talley (Tex. Civ. App.) 211 S. W. 3. Mines and minerals 5—Persons interest. 653.

ed in relinquished oil and gas permit held en The citation to Webb county was issued

titled to subsequent permit covering same

land, subsequent to the date of the intervention by Naquin, the trustee, who intervened under

Under Acts 35th Leg. 1917, c. 83, § 19 leave of court and adopted the allegations of (Vernon's Ann. Civ. St. Supp. 1918, art. 5904s)

relating to forfeiture of oil and gas permits the plaintiff's' petition and asked judgment ac- and leases, it is only where an applicant has cordingly. Such citation failed to show that violated the requirements of such section that Naquin was a party to the suit. His name

an application for a subsequent permit must be is not mentioned therein. Under the au- from a person other than the forfeiting own

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(248 S.W.) er, so that, where the holder of a permit re- ment to the state of Texas of a royalty of onelinquished it, others who had had an interest sixteenth of the value of the gross production in the relinquished permit could, two months of oil and one-sixteenth of the value of the after the relinquishment, take out another per- gross production of gas saved and sold off the mit covering the same land.

premises of the said survey, and the payment

of like amounts to the owner of the soil, 4. Mines and minerals 5-Public land com

"2. The 160-acre survey described in plainmissioner issuing oil and gas lease presumed tiff's petition and referred to hereinafter as to waive failure to develop under permit.

survey No. 10, was surveyed for and set apart Where the public land commissioner failed to the public school fund many years ago. to forfeit oil and gas permits, when he might Lawful and approved field notes of said survey have done so for failure to develop within the are on file in the general land office and have time permitted, and issued an oil and gas lease been for many years. to the holders of the permit, it will be presum *3. Under an application regularly made, in ed in the absence of intervening rights, that the accordance with the terms of the Mineral Act commissioner waived the failure to develop, in of 1917 (Vernon's Ann. Civ. St. Supp. 1918, $8 view of Acts 35th Leg. 1917, c. 83, § 19 (Ver- 5904-5904w), a permit to prospect for oil and non's Ann. Civ. St. Supp. 1918, art. 5904s) vest- gas on said survey No. 10 was issued by the ing a large discretion in the commissioner in the commissioner of the general land office to Mrs. matter of development and of setting aside Rosa C. Graves on February 27, 1917. Said forfeitures.

permit was relinquished by Mrs. Graves by an

instrument in writing, which, after being reAppeal from District Court, Young Coun- corded by the county clerk of Young county, ty; H. F. Weldon, Judge.

was filed in the general land office on or about

October 11, 1918, and notice of the relinquishTrespass to try title by H. C. Bynum, Jr.,

ment was mailed by the commissioner of the against 0. B. Colquitt and others. Judgment

general land office to the county clerk of Young for defendants, and plaintiff appeals.

Af

county on or about said date. tirmed,

“4. Said survey No. 10 being unsold, surSchenck & Triplett, of Graham, for appel- veyed school land, the plaintiff H. C. Bynum, lant,

on May 2, 1918, filed in the general land office G. B. Smedley, of Austin, and Marshall 'his application to purchase the said tract of

land for grazing purposes, on condition of & King, of Graham, for appellees.

settlement, and paid one-fortieth of the pur

chase money and executed his obligation to pay CONNER, C. J. The appellant H. C. By- tbe halauce. Before this application was filed, num, Jr., instituted this suit in the district the land had been duly and regularly classified court of Young county against the appellee as mineral and grazing land by the commis0. B. Colquitt and others, in the ordinary sioner of the general land office and had been

In form of an action in trespass to try title, duly classed and designated as mineral. seeking to recover the title and possession his application to purchase the land, plaintiff

, of survey No. 10, B. R. I. R., containing 160 Bynum, expressly stated that he was buying

the land for agricultural or grazing purposes acres in Young county. The answers of ap- only, and that, if it was classed as mineral pellees, in so far as necessary to here state land, the sale to him was upon the express them, consisted of plea of not guilty. The condition that the minerals therein should be case was tried before the court without a and were reserved to the fund to which the jury, and resulted in a judgment in favor of land belonged. On his application, survey No. the defendants, from which judgment the 10 was awarded to H. C. Bynum by the complaintiff has appealed.

missioner of the general land office on June 6, Upon the request of the plaintiff, the trial 1918. Within 90 days from the date of the court filed findings of fact and conclusions of award, the plaintiff filed in the land office his law, which are as follows:

affidavit that he had settled on the land, and the plaintiff within the time required by law

filed in the land office his affidavit, corroborat"Findings of Fact.

ed by three citizens, stating that he had oc"1. The matter in controversy herein is the cupied the land for three years and had erected oil and gas and the right to explore for, de- improvements thereon of a value of velop, and remove the oil and gas in the sur- than $300. This affidavit was filed by the Fey described in plaintiff's petition.

The commissioner of the land office, but a certificate plaintiff claims that he is the owner of fifteen- of occupancy has not been issued. Under his sixteenths of the oil and gas in the land, and purchase the plaintiff has paid to the state all that the state of Texas owns the other one- past-due interest on the purchase money and sixteenth. The defendants Colquitt, Graves, the sale, under the application above described, Colcord, and Union Oil Company, claim that is in good standing according to the land office they are the owners of a valid oil and gas per- records. mit issued by the state of Texas and of a "5. Under an application regularly made valid oil and gas lease issued by the state of under the terms of the Mineral Act of 1917, a Texas, giving them the right to prospect for, permit to prospect for oil and gas was isdevelop, and remove from the land the oil sued to R. M. Colquitt by the commissioner of and gas therein, paying the royalties provided the land office, on October 22, 1917, on 230 in the lease, said lease providing for the pay- acres of the bed of the Clear Fork of the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 248 S.W.-46

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Brazos river, in Young county. Application the county clerk, but has refused to accept for this permit was filed with the county sur- each of said payments. veyor and a survey of the area was made by “9. The actual development of the areas inhim, and field notes prepared by him were filed cluded in said permit was begun by the owners in the general land office and approved by the of the permit after the expiration of 12 months commissioner of the land office before the is. from the date of the permit, being about 13 suance of the permit. The said permit was or 14 months after the date of the permit, and relinquished by R. M. Colquitt by an instru- within less than 18 months after its date. At ment in writing, and said instrument, after be- that time the owners of the permit began the ing duly recorded by the county clerk of Young drilling of an oil well upon the area covered county, was filed in the general land office on or by the permit; and prosecuted it diligently to about October 11, 1918, and notice of the re- completion, without producing oil or gas in linquishment was mailed by the commissioner commercial quantities. A very short time of the land office to the county clerk of Young thereafter the owners of said permit began county on or about said date.

the drilling of an oil well in the Clear Fork “6. Under an application regularly made, of the Brazos river, included in said permit, under the terms of the Mineral Act of 1917, a and prosecuted the same diligently to complepermit to prospect for oil and gas was issued tion, and obtained therein, on or about Februto 0. B. Colquitt by the commissioner of the ary 1, 1921, oil in commercial quantities. On land office on August 31, 1917, covering 1,41242 February 19, 1921, upon the application of the acres of the bed of the Brazos river in Young owners of said permit, the commissioner of the county. The application for this permit was general land office executed and delivered to 0. filed with the county surveyor of said county B. Colquitt and J. N. Graves oil and gas lease and a survey of the area was made by him No. 2825, giving them the right to prospect for and the field notes were prepared by him and oil and gas upon said survey No. 10, and the filed in the land office and approved by the com- other two areas included in said permit for missioner of the land office before the issuance a period of 10 years. A copy of said lease of said permit. The said permit was relin- was introduced in evidence and is contained in quished by O. B. Colquitt by an instrument the statement of facts. Under the said perin writing, which, after being recorded by the mit and lease, the owners of the same have county clerk of Young county, was filed in drilled and completed three other oil wells in the general land office on or about October 11, the bed of the Clear Fork of the Brazos river, 1918, and notice of the relinquishment was included in said permit and lease, and oil in mailed by the commissioner of the land office to commercial quantities has been produced there. the county clerk on or about said date. from. Under said permit and lease the owners

“7. The three areas covered by the three oil of the same have drilled and are now drilling and gas permits above referred to, issued to an oil and gas well on said survey No. 10. The Rosa C. Graves, R. M. Colquitt, and 0. B. drilling of this well was begun on or about Colquitt, respectively, are continuous areas. December, 1920, and its drilling has been

“8. On December 2, 1918, O. B. Colquitt and prosecuted with diligence, and it has not yet J. N. Graves filed in the office of the county been completed, it having been drilled to clerk of Young county, in accordance with the about 2.800 feet, and the oil and gas not yet · provisions of the Mineral Act of 1917, an ap- having been produced from it in commercial plication for a permit to prospect for oil and quantities. gas upon the said survey No. 10 and upon the “10. The aforesaid permit and the aforesaid said 250 acres in the bed of the Clear Fork of lease are in good standing in the general land the Brazos river, and upon the said 141212 office, and the commissioner of the general land acres in the bed of the Brazos river, being the office has never forfeited or declared forsame acres covered by the three permits above feited either the said permit or lease, and has referred to. This application, after being re never made any entry on the land office records corded by the county clerk, was filed in the for the purpose of forfeiting either the said general land office on December 9, 1918. On permit or the said lease, and the rights under January 24, 1919, the commissioner of the said permit and lease have not been terminated. general land office, acting upon the said ap- The said permit and lease are owned jointly by plication, issued upon it to 0. B. Colquitt and J. the defendants 0. B. Colquitt, J. N. Graves, N. Graves oil and gas permit No. 2825, giving and C. F. Colcord, Colquitt and Graves ownthen the right to prospect for oil and gas up- ing together an undivided one-half interest in on the three areas included in said applica- the same, and Colcord owning an undivided onetion, in accordance with the Mineral Act of half interest in the same. The defendant 1917. A copy of said permit was introduced Union Oil Company has a contractual right in in evidence and is contained in the statement the said permit and lease, in so far as that of facts. The parties to whom the permit was

covers said survey No. 10. issued paid to the proper officers all fees provided by law. The owners of the said permit

“Conclusions of Law. have paid in advance to the state of Texas for the first second, and third years under said "1. I conclude that, in the sale of said surpermit the 10 cents per acre rental due the vey No. 10 to the plaintiff, H. C. Bynum, by state, and have paid in advance to the county the state of Texas, the state reserved and ex. clerk of Young county for the owner of the cepted all the minerals, including oil and gas, soil the 10 cents per acre rental due the owner in and under said land, together with the right of the soil for said survey No. 10, for the first, to enter upon the land and use so much of second, and third years. The plaintiff has the surface thereof as might be reasonably nec

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