Annotate this Case

1915 OK 926
153 P. 115
52 Okla. 490
Case Number: 5837
Decided: 11/16/1915
Supreme Court of Oklahoma



¶0 1. APPEAL AND ERROR--Harmless Error--Appointment on Unverified Petition--Admissions in Verified Answer. Where a verified answer to an unverified petition for a receiver admits a state of facts requiring, or rendering proper, the appointment of a receiver, an order appointing a receiver will not be reversed on the ground that the petition was not verified, and no other evidence under oath was offered.
2. PLEADING--Objections--Unverified Petition--Effect of Verified Answer--Admissions. It was shown by the averments of an unverified petition for a receiver, filed in, and ancillary to, a suit in equity to cancel a lease and quiet title, and the admissions by actual averments, and by failing to deny, in a verified answer thereto, that petitioner was the owner of a guardian's lease, fair and regular on its face, and prior in time to a similar lease on the same land by the same guardian, and in the same court, held by defendant; that after plaintiff's suit was commenced to cancel defendant's lease and summons was duly served on defendant, the latter went secretly and without the knowledge of the plaintiff and entered upon the land and drilled in an oil well, and was ready to take oil from the land. Held, that the court was justified in appointing a receiver to protect the property and hold the revenues from production, pending the final result of the case; and this, notwithstanding the fact that the ancillary petition was not verified.

Frank Ertell, for plaintiff in error
Samuel G. MaGee, for defendant in error


¶1 This is an appeal from the refusal of the court to vacate an interlocutory order appointing a receiver. Defendant in error brought its suit in the district court of Rogers county to cancel and annul certain purported leases on certain described lands, and to remove clouds from and quiet title in itself to said lands. Among the averments in the petition it is shown that defendant in error, plaintiff in the court below, had procured and was the owner of certain oil and gas leases on land of two separate minors, through leases properly and regularly secured through the county court, and which leases were approved and confirmed by such court in November, 1912. Plaintiff there also averred that defendant Ward also claimed to be the owner and holder of leases on the same land, as belonging to the same minors, and purporting to have been regularly issued and confirmed in February, 1913, by the same court that had confirmed its leases; and that theretofore Ward's leases, being later in time, were invalid and of no effect, and constituted clouds on plaintiff's title, which should be removed. After this suit was filed and summons served on Ward, and the various owners of the land involved, plaintiff filed a petition or motion, asking for the appointment of a receiver through an interlocutory order of the court, and without waiting for the final determination of the case. In this petition, the averments of the original petition are referred to, and in fact, substantially set out, and the original petition is made a part of the petition for receiver. The further allegation is made that since the filing of the suit and the service of summons, defendant Ward had entered secretly upon the lands involved, and had conveyed thereto and installed thereon certain drilling machinery, and had drilled for and obtained oil; that said defendant had obtained possession of the land and done the drilling secretly and without the knowledge or consent of plaintiff, and after he was served with process in the suit to annul and cancel the leases under which he claimed to be operating. Defendant filed an answer to the petition for receiver, in the nature of a lengthy affidavit, in which he sets up his leases through the county court; asserts that they are valid and superior to plaintiff's leases, and that therefore he has a right to be upon, prospect, and develop the lands. Further on in his affidavit, he admits that he is in possession of the land, and has drilled in an oil well, and claims that he is within his lawful rights. He nowhere denies that his possession was obtained and the drilling commenced secretly, and without the consent or knowledge of plaintiff, and after he had been served with process in the equitable suit to cancel his leases. At a hearing of the matter before the court, at which all the parties were present or represented, the court made an order appointing a receiver to take charge of the properties during the pendency of the litigation, and until further orders of the court. Defendant made a motion to vacate the order, which was denied; and to have this action of the court reviewed, he prosecutes this appeal, appearing here as plaintiff in error. Several assignments of error are set out, but the argument is really confined to two propositions: (1) That the ancillary petition or motion for the appointment of a receiver was not verified; and (2) that the court did not have before it sufficient facts to warrant the appointment of a receiver. 1. Our attention has not been called to any statute, requiring the verification of a petition of this nature; and if one exists, which we have not observed, or if the general rules enforced in equity require a verification, no question was made of this by pointing out the defect until after the order for a receiver had been made. Ordinarily, this would amount to a waiver of the point. Kaufman v. Boismier et al.,

¶2 By the Court: It is so ordered.