The ruling of the Supreme Court in Stephenson v. Nichols, 286 S.W. 199 (by adoption of the judgment recommended by Commission of Appeals), necessarily determined that evidence on a motion for new trial may be preserved for review on appeal under Art. (2073) 2246, Rev. Stats., 1925, though not embodied in a bill of exceptions filed during the term. This settled the conflict between the like ruling of the appellate court herein and the contrary decision in Smith v. Texas Power Light Co., 206 S.W. 119. (P. 131). 3. — Same — Assignment of Error — Sufficiency of Evidence — Findings of Court.
Benavides v. Hunt, 79 Tex. 396; J.M. Guffey Pet. Co. v. Chaison Townsite Co., 48 Texas Civ. App. 555[ 48 Tex. Civ. App. 555]; Texas Co. v. Daugherty, 107 Tex. 233 [ 107 Tex. 233]; National Oil Pipe Line Co. v. Teel, 95 Tex. 591; Johnson v. Gurley, 52 Tex. 222 [ 52 Tex. 222]; Harris v. Rather, 134 S.W. 755; Wade v. Madison, 206 S.W. 119; cited with approval. (Pp. 531-534.)
Appellees did sue for and recover damages, in the sum of $1146.25 (S. 176), as compensation for the value of royalty to which they were entitled on oil which should have been produced on the property during the period of cessation in pumping of the wells. Grubb v. McAfee (Sup.), 212 S.W. 464; McCallister v. Texas Co., 223 S.W. 859; Pierce v. Oil Co., 225 S.W. 193; O'Neil v. Sun Co., 123 S.W. 172; Wade v. Madison, 206 S.W. 119; Harris v. Rather, 134 S.W. 755, writ denied; Kachelmacher v. Laird, 92 Ohio St. 333, 110 N.E. 935; Harris v. Oil Co., 57 Ohio St. 131, 48 N.E. 506; Poe v. Ulrey, 233 Ill. 65, 84 N.E. 50; Kleppner v. Lemon, 176 Pa. 511, 35 A. 109; id., 198 Pa., 581, 48 A. 483; Texas Co. v. Daugherty, 107 Tex. 226; Benavides v. Hunt, 79 Tex. 383 [ 79 Tex. 383]; Southern Oil Co. v. Colquitt, 69 S.W. 169; Guffey v. Smith, 237 U.S. 101; Witherspoon v. Staley, 138 S.W. 1191; Allegheny Oil Co. v. Snyder, 106 Fed., 764; Priddy v. Green, 220 S.W. 249, par. 5. The evidence is insufficient to support the finding, that appellant abandoned the mineral estate involved in the suit, and for this reason should be set aside and a new trial granted.
Appellant's remedy, if dissatisfied with the operation of the property, was to compel its proper operation by resort to equity or suit for damages, or both. Grubb v. McAfee, 109 Tex. 527; McCallister v. Texas Co., 123 S.W. 172; Pierce v. Oil Co., 225 S.W. 193; O'Neil v. Sun Co., 123 S.W. 172; Wade v. Madison, 206 S.W. 119; Harris v. Rather, 134 S.W. 755; Kachelmacher v. Laird, 92 Ohio St. 333, 110 N.E. 35; Harris v. Oil Co., 57 Ohio St. 131, 48 N.E. 506; Poe v. Ulrey, 33 Ill. 65, 84 N.E. 46; Kleppner v. Lemon, 176 Pa, 511, 35 A. 109; Kleppner v. Lemon, 198 Pa., 581, 48 A. 483; Texas Co. v. Daugherty, 107 Tex. 226; Benavides v. Hunt, 79 Tex. 383; Priddy v. Green, 220 S.W. 249; Davis v. Texas Co., 232 S.W. 549, 27 Cyc., 687, 688, with copious citation of authority. If the court should be of the view contrary to that contended for by appellees, then we contend that the testimony was insufficient to raise such an issue as to abandonment as ought to have carried same to the jury, and the trial court committed no error in directing the jury to return a verdict for appellees.
Some causes of forfeiture being expressly mentioned, none other can be implied. * * * The remedy for a breach of the implied covenant to reasonably operate the premises is therefore not by way of a forfeiture of the lease in whole or in part, but must be sought in a proper action for a breach of such covenant." Again, the Supreme Court approves the following language used by the Dallas Court of Civil Appeals, in Wade v. Madison, 206 S.W. 119: "It seems settled, however, that ordinarily breaches of express covenants, much less those that arise only by implication, do not forfeit the right of possession or confer the right of re-entry, in the absence of an express provision to that effect in the contract." In the case of Lane v. Urbahn, 246 S.W. 1070, it was held by this court, through Associate Justice Smith: "The contract expressly provided that if the lessees failed to begin drilling a well on or before February 20, 1920, the lease should terminate, unless the lessee paid the stipulated rental; but in no other contingency was a forfeiture expressly provided for.
This court recognized the right to bring up the evidence in a statement of facts which was had upon a motion to set aside a verdict. However, we regarded such evidence as not being part of the trial on the main issue, and that as it partook in its nature of a bill of exception, and as a bill of exception, as announced by the Court of Criminal Appeals, was required to be filed during term time, we concluded to follow the holding of that court. Smith v. Texas Power Light Co. (Tex.Civ.App.) 206 S.W. 119. In the case of St. Louis, etc., Railway Co. v. Vick (Tex. Civ App.) 210 S.W. 247, our position as to the time of filing the statement of facts on the motion was criticized and dissented from.
In construing this law, the Court of Criminal Appeals has consistently held that bills of exception or statement of facts containing evidence had at the hearing of a motion for a new trial must be filed in term time, and one that is not so filed cannot be considered. Reyes v. State, 81 Tex.Cr.R. 588, 196 S.W. 532. The Amarillo Court of Civil Appeals, in Smith v. Texas Power Light Co., 206 S.W. 120, followed the holding of the Court of Criminal Appeals, but the San Antonio Court of Civil Appeals, in St. Louis, B. M. R. Co. v. Vick, 210 S.W. 247, refused to follow the opinion in Smith v. Power Light Co., supra, and held exactly the opposite-that article 2073, supra, applies to bills of exception containing testimony taken on a motion for new trial. But we do not believe it necessary for us to decide the question in the disposition of this case, and hence do not further discuss same.
"Revised Statutes, article 2073, giving, or appeal from judgment, time beyond the tern in which to prepare and file statement of fact and bills of exceptions, does not apply to testimony taken on motions for new trial for mis conduct of the jury, which must be preserve, by bills of exception or statement of facts file in term time." In support of their contention, counsel for appellee cite the case of Smith v. Texas Power Light Co. (Tex. Civ. App.) 206 S. M 120. The opinion in that case was by th Amarillo Court of Civil Appeals, speaking through Chief Justice Huff.