Woolley v. Shaw

BAYLESS, J. This is an original proceeding in this court wherein W. W. Woolley and Ed Highfill petitioned for a writ of prohibition directing the Hon. Oras A. Shaw, judge of the district court in and for Tulsa county, to desist from further proceedings or the exercise of further jurisdiction in relation to the matters set out in the petition. It is alleged generally that an action was already pending in the district court of Pottawatomie county, Okla., involving the subject matter attempted to be litigated in the action filed in Tulsa county, at the time the later action was filed. We think a more detailed statement of the allegations in the petition for writ of prohibition and response thereto will be helpful at this point. May 12, 1942, action No. 19013 was commenced in district court of Pottawatomie county by C. L. Jenkins against Woolley and Highfill, seeking to foreclose a lien on the northwest of the northeast and the northwest of the southeast of 28-8-4, and on Varner well No. 1 and Peter’s well No. 1, these last not being located by legal description; and for the appointment of a receiver and other equitable relief. May 16, 1942, Adam Butler intervened in action No. 19013, claiming to own three-sixteenths of the seven-eights working interest in northwest of the northeast of 28-8-4 and seeking to have a receiver appointed for the thirteen-sixteenths interest owned by Woolley and Highfill in order that their interest might be charged with the expenses of certain developments and his three-sixteenths interest be absolved. May 18, 1942, Woolley and Highfill filed a response to the petition of Jenkins and the plea of intervention of Butler insofar as those pleadings sought the appointment of a receiver. May 19, 1942, an order was made continuing the hearing upon the applications for the appointment of a, receiver until June 4, 1942. May 21, *1942, Woolley and Highfill settled with Jenkins and Jenkins dismissed his cause of action against them with prejudice. May 22, 1942, Woolley and Highfill filed an answer to Jenkins’ petition (although that petition had been dismissed) and a cross-petition against Butler. The land described in this cross-petition is the northwest of the northeast of 28-8-4. In this cross-petition they admit that three-sixteenths of the seven-eights working interest is in Butler’s name, but they assert that John Catlett is the true owner thereof; they alleged that Catlett should be made a party defendant; they allege -that they have expended certain money in drilling a well on this property and that Catlett’s three-sixteenths interest is legally liable for a portion thereof which Catlett and Butler refused to pay and for which Woolley and Highfill are legally entitled to have reimbursement. They ask'to have a receiver appointed to protect their interest in that respect. They also seek other relief with respect to this particular 40-acre tract. May 23, 1942, an order was entered making Catlett a party defendant and service of process was thereafter accepted for Catlett and no question of his *109 being a party to action No. 19013 is presented. May 29, 1942, Woolley and Highfill caused notice to be given of the hearing on June 4th of their application for the appointment of a receiver in action No. 19013. June 2, 1942, action No. 70902 was filed in the district court of Tulsa county with T. C. Iglehart as plaintiff and Woolley, Highfill, W. P. Baze, Jr., and Mid-Continent Petroleum Company as defendants. The oil and gas interests described were said to cover 760 acres in sections 21 and 28 of 8-4, Pottawatomie county. Descriptions are not specific in some instances. For instance, it is alleged simply that the Varner A lease contains 40 acres in the northeast of section 28. It is to be supposed that this is the same as the northwest of the northeast of 28-8-4, heretofore described in action No. 19013 in Pottawatomie county, although there is nothing in the pleadings before us to definitely so establish. The descriptions are indefinite but are followed by general allegations that more definite and specific descriptions are not given because the descriptions are well known to all parties involved. Four causes of action were set out in this petition, but causes 3 and 4 were stricken and we need not consider them. In cause of action No. 1 it was alleged in substance that Iglehart, a geologist, obtained information with respect to prospective oil production on the lands involved and gave this information to Woolley for the purpose of enabling Woolley to take leases in the two sections with the understanding that Baze would furnish the money and that the leases thus taken should be owned by these parties in agreed portions. It is then alleged that Woolley took these leases in his own name, using Iglehart’s information and Baze’s money as expenses, and has refused to recognize the interest of Iglehart or Baze therein. Other appropriate allegations are made from all of which Iglehart seeks to have established a coadventure between himself, Wool-léy, and Baze, to have their respective partnership or coadventure interests established and set out to each of them and to have an accounting. In the second cause of action Iglehart alleged that Woolley and Highfill procured from Mid-Continent Petroleum Company an advance of $10,000 to be charged against the runs from thirteen-sixteenths interest claimed by Woolley and Highfill and that Mid-Continent has or will claim lien against Varner lease to secure this advance and in this respect plaintiff’s interests have been jeopardized and prejudiced. Based upon these and other appropriate allegations plaintiff seeks to have Mid-Continent Petroleum Company account to him for any sum which it holds, and a decree that any lien which it claims be junior and inferior to the interest of the plaintiff. At this point we notice lhat the only prayer for appointment of receiver is contained in the fourth cause of action, which all of the parties recognize as having been dismissed. If the Varner A lease described above in action No. 70902 is the same land as the northwest of the northeast described in action No. 19013, then these two causes of action conflict at this point only as to that 40 acres. June 2, 1942, summons was issued in action No. 70902 and was returned showing service on Woolley and Mid-Continent Petroleum Company. From allegations appearing elsewhere, we are given to understand that this service of summons on Mid-Continent Petroleum Company was quashed and that service was not perfected on this company until sometime in Augukt, 1942. June 4, 1942, in action No. 19013 an order was entered on application of Woolley and Highfill appointing a re-' ceiver for the three-sixteenths of the seven-eights working interest in northwest of the northeast of 28-8-4 owned by Butler for Catlett. June 5, 1942 (keeping in mind that Mid-Continent had been served in Tulsa county but such service had been *110 quashed) Mid - Continent Petroleum Company filed an application in action No. 19013 seeking to intervene, and upon permission being granted filed a petition in intervention which covers the northwest of the northeast of 28-8-4 only. In this petition Mid-Continent set up that it was taking the oil runs under a division order which it set out. It also alleged that it had loaned $10,-000 to Woolley and Highfill against runs from the thirteen-sixteenths of the seven-eights interest owned by them and had a lien to secure the same. It alleged that others claimed interest in said lease. Based upon these and other appropriate allegations, Mid-Continent Petroleum Company asked for the protection of its interest and for the appointment of a receiver for the thirteen-sixteenths of the seven-eighths working interest and other relief. June 5, 1942, in action No. 19013 the district court of Pottawatomie county, upon application of Midr Continent Petroleum Company, appointed a receiver for the thirteen-sixteenths of the seven-eighths working interest in and to the northwest of the northeast of 28-8-4. June 6, 1942, in action No. 19013 the district court of Pottawatomie county entered an order making T. C. Iglehart (plaintiff in the Tulsa county action) a party defendant in the Pottawatomie county action. It does not appear that service of summons had been perfected upon Iglehart at the time of the filing of the petition for writ of prohibition, August 5, 1942, although it is alleged that diligence is being used to perfect service upon Iglehart. June 16, 1942, Woolley and Highfill filed an objection to the jurisdiction of the district court of Tulsa county in action No. 70902 based upon the prior action No. 19013 in Pottawatomie county. June 23, 1942, the district court of Tulsa county heard this objection and sustained it as to the second, third, and fourth causes of action stated in the petition, but later amended the order to sustain the objection to the third and fourth causes of action only. July 21, 1942, action No. 19078 was filed in the district court of Pottawatomie county with E. N. Jones plaintiff, and Woolley and Highfill as defendants, covering the east half of the west half and the northwest of the southeast of section 28-8-4 and the northwest of the southeast and the south half of the southwest of the northeast of 21-8-4 and the northwest of 21-8-4, wherein he claimed an interest in the so-called Bodkins and Boyd leases and asked for the appointment of a receiver to protect his interest. July 21, 1942, in action No. 70902 in Tulsa county an order was entered upon application of Iglehart, which application is not before us, appointing a receiver for all of the leases heretofore, involved or described except the northwest of the northeast of 28-8-4. July 22, 1942, in action No. 19078 the district court of Pottawatomie county, upon application of Jones, plaintiff, and Woolley and Highfill as defendants, covering the east half of the west half and the northwest of the southeast of section 28-8-4 and the northwest of the southeast and the south half of the southwest of the northeast of 21-8-4 and the northwest of 21-8-4, wherein he claimed an interest in the so-called Bodkins and Boyd leases and asked for the appointment of a receiver to protect his interest. July 22, 1942, in action No. 19078 the district court of Pottawatomie county, upon application of Jones, plaintiff, appointed a receiver for the northwest of 21-8-4 and the northeast of the southeast and south half of southwest of the northeast of 21-8-4. As nearly as we can make the various descriptions coincide, it appears that the order entered in Tulsa county the day before covered some if not all of these tracts of land.- *111 July 28, 1942, in action No. 19013 in Pottawatomie county P. & H. Company intervened and filed a petition to foreclose a materialman’s lien on leases on the following tracts of land: Northwest of northeast and northwest of southeast of 28-8-4 and northwest of southeast of 21-8-4. The two tracts described as being in section 28 had previously been involved in No. 19013 and the tract northwest of northeast of 28 and the northwest of southeast of 21 were probably described in the Tulsa county case No. 70902. August 1, 1942, an order was entered consolidating No. 19013 and No. 19078 under No. 19013. August 1, 1942, an amended order was entered in consolidated action No. 19013, setting out that orders theretofore made in No. 19013 and in No. 19078 appointing Hendon receiver over the thirteen-sixteenths of the seven-eighths working interest should be amended to include additional property within the receivership appointment. This amended order of appointment conflicts with the order appointing a receiver in No. 70902 with respect to many tracts of land, but does not conflict with the order of appointment of receiver theretofore made with respect to northwest of northeast of 28-8-4. We observe also that as to No. 1 Wilcox, No. 1 Varner, No. 1 Bodkin and B. C. Jones tract, there are no pleadings shown in No. 19013 that can serve ás the basis for an application for the appointment of a receiver. Insofar as this record is concerned the Pottawatomie court entered the amended order appointing receiver without any party in No. 19013 having filed a pleading seeking relief against those tracts. It acted on the application alone. In the meantime, by an undated order entered in action No. 70902 in Tulsa county, a temporary restraining order was entered restraining all the parties named heretofore from interfering with plaintiff or the receiver and directing certain of them to turn over to the receiver appointed in Tulsa county all of the properties involved in the order appointing a receiver by that court. This order was directed to the receiver appointed by the district court of Pottawatomie county although it does not appear that these parties ever appeared or submitted themselves to the jurisdiction of the district court of Tulsa county. It is the theory of petitioner herein that the subject matter of all of these actions, generally speaking, is mineral interests in real estate located in Pottawatomie county, and that the district court of that county acquired a prior exclusive jurisdiction thereof by virtue of the filing of action No. 19013. In support of this position petitioner cites Lanyon v. Braden, 48 Okla. 689, 150 P. 677; State ex rel. Ketchum v. District Court of Tulsa County, 82 Okla. 54, 198 P. 480; Schofield v. Melton, 166 Okla. 64, 25 P. 2d 279, and other cases of like nature. Respondent resists this petition for prohibition and in so doing relies upon Myers v. Garland, 122 Okla. 71, 251 P. 34, and Replogle v. Neff, 176 Okla. 333, 55 P. 2d 436, wherein it is held that a cause of action for the establishment of a partnership or coadventure and the adjustment of the rights of the parties thereunder is transitory and may be filed in any county where any of the partners may be served, and he insists that the fact that the partnership assets include real property located in other counties does not deprive the court of jurisdiction, it being generally held that the adjustment of the title to property is incidental to the equitable relief respecting the partnership. He also insists, on the authority of the decisions cited, that the court first acquiring jurisdiction retains it. Both sides recognize that wherever there is a likelihood of two courts of concurrent jurisdiction coming to conflict in their orders with respect to specific property, the court first having jurisdiction of the specific property has exclusive jurisdiction. Black Panther *112 Oil & Gas Co. v. Swift, 69 Okla. 33, 170 P. 238. It will be observed from the recitation above that the order appointing receiver entered by the district court of Tulsa county in action No. 70902 did not include or cover the northwest of the northeast of 28-8-4, which had theretofore been put into receivership by the district court of Pottawatomie county. We are of the opinion that the authorities cited and relied upon by respondent support his position insofar as the first cause of action is concerned and insofar as the jurisdiction of that court attached to the property described herein that had not been already brought under the jurisdiction of the district court of Pottawatomie county. In this connection we observe that all of these cases hold that it is not necessary that seizure be made of real property in order to subject it to the jurisdiction of the court, but it is essential only that allegations with respect thereto be made sufficient to set the judicial mind in operation with respect thereto. With this in mind and reverting to the recitation of the facts made above, it becomes apparent that the only real estate or mineral interest involved in action No. 19013 in Pottawatomie county prior to the filing of action No. 70902 in Tulsa county was the north-/ west of northeast of 28-8-4. Flanagan v. Clark, 156 Okla. 230, 11 P. 2d 176. The attention of the district court of Pottawatomie county was not called to any other real estate or to the mineral interest in any other tract of real estate than the northwest of the northeast of 28-8-4 until July 21, 1942, and at that time action No. 70902 had already been commenced in Tulsa county and the additional land attempted to be brought into the jurisdiction of the district court of Pottawatomie county in action No. 19013 had already vested exclusively in the district court of Tulsa county. Tn each case, viewed apart from the other case, the power of the court over the parties and the subject matter was complete and perfect. In each case the court was asked to act with respect to personal, contractual obligations between the parties, and as an incident to each the court was asked to do something about some real estate. In the Pottawatomie county case the land is located within the territorial boundaries of the district wherein the court was organized, while in the Tulsa county case the land is located outside the confines of the court’s territory. But in cases such as these, the jurisdiction of each court is coextensive with the state boundary. The Pottawatomie case began by involving only a small part of the 760 acres finally involved. The Tulsa case began later by trying to include all of it. The only arguments that logically can be made are: (1) the venue of the real estate, and (2) the possibility that the Pottawatomie case might spread out to take in additional land. We have already seen the first is not valid, and we feel the second is not logical. If a court once seizes some property, it would be illogical to say that no other court could seize other property because of the likelihood that the first court may wish to reach out and seize additional property. We deem it best to apply here the recognized rule that the court first seizing property within its jurisdiction shall retain it and other courts will be forbidden to interfere therewith. With respect to the second cause of action in action No. 70902, in Tulsa county, which that. district court first struck and later reinstated, we are of the opinion that the relief sought therein against Woolley and Highfill and Mid-Continent is not properly before' the district court of Tulsa county, because it appears from the pleadings in all actions that the rights asserted in said second cause of action relate to interests involved in the northwest of the northeast of 28-8-4, which we have above held was in the exclusive jurisdiction of the district court of Pottawatomie county. As we have observed *113 before, the district court of Tulsa county in the later orders appointing receiver and taking other steps to protect its jurisdiction has not undertaken to act with respect to this 40 acres. We think this grows out of that court’s recognition of the prior attachment of the jurisdiction of the district court of Pottawatomie county over that 40 acres. The petition for writ of prohibition is denied insofar as the issues presented in the first cause of action in action No. 70902, except the northwest of the northeast of 28-8-4, are concerned; and the writ is granted insofar as the relief sought in the second cause of action is concerned, and the district court of Tulsa county is directed to dismiss that cause of action. GIBSON, V. C. J., and RILEY, OSBORN, and ARNOLD, JJ., concur. CORN, C. J., and WELCH, HURST, and DAVISON, JJ., concur in part and dissent in part.