Massad v. Sayre Oil Corp.

Full title: MASSAD et al. v. SAYRE OIL CORPORATION

Court: Court of Civil Appeals of Texas, Austin

Date published: May 4, 1938

116 S.W.2d 1136 (Tex. Civ. App. 1938)

Opinion

No. 8741.

May 4, 1938.

Appeal from District Court, Ninety-Eighth District, Travis County; J. D. Moore, Judge.

Suit by the Sayre Oil Corporation against N. S. Massad and others to set aside an order of the Railroad Commission granting a permit to drill a second oil well upon a 2.2-acre tract as an exception to rule 37 in order to prevent confiscation of property. From an interlocutory order overruling a motion to dissolve a temporary injunction, defendants appeal.

Order appealed from set aside and temporary injunction dissolved without prejudice.

Saye Saye, of Longview, for appellants.

Weeks, Hankerson Potter, of Tyler, for appellee.

McCLENDON, Chief Justice.

This is a rule 37 case. The appeal is from an interlocutory order overruling a motion to dissolve a temporary injunction enjoining the drilling of a second well upon a 2.2-acre tract in the East Texas Oil field. The suit in which the injunction was issued was to set aside an order of the Commission granting a permit to drill the well as an exception to rule 37 in order to "prevent confiscation of property."

The injunction was granted ex parte and without notice or hearing, upon the filing of the verified petition. It was therefore void under R.C.S. art. 6049c, § 10, as amended March 6, 1935, by H. B. No. 403, Gen.Laws 44th Leg., p. 74, ch. 28, § 1, Vernon's Ann.Civ.St. art. 6049c.

The Commission was not made a party to the motion to dissolve; and, so far as the record shows, was not notified of and did not appear at the hearing. Under the amendment therefore the court was without jurisdiction to continue the injunction in effect by overruling the motion. The proper order upon the motion would have been to dissolve the injunction, and set the original application therefor for hearing, giving to all parties, including the Commission, reasonable notice of such hearing. See opinion in L. P. B. Oil Corporation v. Gulf Oil Corporation, Tex. Civ. App. 115 S.W.2d 1034.

The order appealed from is set aside and the temporary injunction is dissolved, without prejudice.

Order set aside; temporary injunction dissolved.