Opinion
Application No. 27,214, Application No. 27,215.
Decided October 6, 1943.
Courts — Appeal and Error — Vacancy.
If the action of the district court in dismissing a cause for want of necessary parties was proper, it was also proper for said court not to attempt to act on the order of the Commissioner of the General Land Office refusing an application to declare certain land vacant.
Error to the Court of Civil Appeals for the Sixth District, in an appeal from Gregg County.
The suit originated in an action by W.C. Elms, Jr., against Bascom Giles, Commissioner of the General Land Office, the Attorney General of Texas, and 258 others (including a number of oil companies) for the purpose of determining whether a certain unsurveyed area of land was vacant, after the land commissioner had refused his application to lease on the ground that the area was not vacant. The State, through its Attorney General, later intervened on behalf of the Public Free School Fund of the State. A judgment of dismissal on the part of the trial court was affirmed by the Court of Civil Appeals, (Elms v. Giles) 173 S.W.2d 264, and the State, as intervenor, and the plaintiff, have brought error to the Supreme Court.
Applications refused.
Gerald C. Mann, Attorney General, Cecil C. Rotsch and Fagan Dickson, Assistants Attorney General, for the State, and W.E. Jones, of Longview, for Elms, petitioners.
Fountain, Cox Sandlin, M.E. Sandlin, Barksdale Stevens and Robt. F. Higgins, all of Houston, Bramlette, Levy Bolton, and H.P. Smead, all of Longview, W.W. Mason, of Mexia, Turner, Rodgers Winn and Frank J. Scurlock, and Prentice Wilson, all of Dallas, Thompson, Walker, Smith Shannon, of Fort Worth, James B. Henderson and H.C. Walker, Jr., both of Shreveport, La., W.F. Semple, Y.P. Broome and Donald Campbell, all of Tulsa, Okla., for respondents.
This case is before us on the two applications for writs of error above indicated. The appeal is from Cause No. 6066, W.C. Elms, Jr., et al, Appellants, v. Bascom Giles et al, Appellees, decided by the Court of Civil Appeals for the Sixth Supreme Judicial District of Texas, at Texarkana. The opinion of the Court of Civil Appeals, which is reported in 173 S.W.2d 264, makes a full and correct statement of the facts and issues of this case. An examination of the opinion of the Court of Civil Appeals shows that the district court dismissed this case because of the lack of necessary parties defendant. The judgment of the Court of Civil Appeals affirms such judgment of dismissal.
The State of Texas contends that, even if the district court was correct is dismissing this cause for lack of necessary parties defendant, it should have set aside the order of the Commissioner of the General Land Office refusing this application for a vacancy, and then dismissed this cause without prejudice to the right of W.C. Elms, Jr., to file a new application, and without prejudice to the right of the State of Texas, through its Attorney General, to file a new suit under the authority of Article 5240, Vernon's Annotated Civil Statutes. Of course, if the district court properly entered judgment dismissing this cause for lack of necessary parties defendant, it properly did not attempt to act on the order of the Land Commissioner one way or the other.
We refuse the applications for writs of error filed in this cause by the State and by Elms, because we are of the opinion that the district court properly dismissed this cause for lack of necessary parties defendant. In regard to this matter we approve the opinion of the Court of Civil Appeals. The legal effect of such dismissal is left as an open question, to be decided in any future legal proceedings involving the subject matter of this litigation.
Opinion delivered October 6, 1943.