McComber v. Kellerman

SHAW, J.

The appeal is from the judgment and from an order denying the defendant’s motion for a new trial.

The complaint states a cause of action to recover the sum of eighteen hundred and fifty dollars alleged to be due upon certain covenants for the payment of rent contained in a so-called oil lease. The appeal was taken to the district court of appeal for the second district. That court, conceiving it to be a ease not within its jurisdiction under the constitution, made an order, as provided by the rules of this court, transferring the case to this court because of the fact that the appeal was supposed to be taken to the wrong court. In this the district court appears to have erred. The complaint is a simple action for a money judgment amounting to less than two thousand dóllárs and, under the constitution, the appellate jurisdiction is in the district court of appeal. To set at rest all question concerning jurisdiction, we make a formal order transferring the cause from the district court of appeal to the supreme court.

The action is based upon a certain agreement executed between the plaintiff and defendant on June 20, 1908. By this agreement the plaintiff granted to the defendant the exclusive right to enter upon the land and drill wells thereon for the

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extraction of oil and remove the oil so extracted, paying therefor a certain specified royalty to the plaintiff. The defendant therein agreed that he would place a derrick and drilling outfit on the land and commence drilling on or before ninety days from the date of the lease, and would thereafter prosecute the work of drilling said well with reasonable diligence continuously to success or abandonment. The lease then proceeded with the following clause:—

“It is understood and agreed, however, that in the event of the failure of the party of the second part to place a derrick and drilling rig upon the above described premises and commence drilling within the said ninety days and prosecute said drilling continuously and in good faith, as aforesaid, said second party agrees to pay to said first party, until drilling is so commenced and diligently prosecuted as aforesaid, the following amounts, viz.: For the first two months after the expiration of said period of ninety days, the sum of one hundred and fifty ($150.00) dollars per month; for the next four (4) months the sum of two hundred ($200.00) dollars per month, and for the next six (6) months, the sum of two hundred and fifty ($250.00) dollars per month, said payments to be made on the 20th day of each month for the preceding calendar month, but in no event shall the party of the second part be allowed more than one year and three months in which to commence drilling said first well, and if the said party of the second part shall fail to commence said drilling operations within one year and three months from the date of this lease, or fail to make any of the payments as above set forth, then this said lease shall be void and the party of the second part shall forfeit all right to the possession of any of the said premises under this agreement and shall not be entitled to commence drilling operations thereon according to the terms of this lease or otherwise.”