On Appellant A. C. Wylie’s Motion for Rehearing.
Since our original opinion was rendered herein, and in connection with motions for rehearing, there has been filed in this court further supplemental transcripts of the proceedings had in the trial court on December 18 and 19, 1936, on the matters heretofore certified to it. These additional records show that the trial court found that there were in said Farris pit on the date of the order of sale of said oil, a total of 109,737 barrels, and that the balance of the purchase price at 58½ cents per barrel had been deposited in the registry of the court. The testimony also indicated that the quantity of oil in said pit- from the time Wylie was given judgment in the district court of Gregg county, on October 2, 1935, up to the time the oil was sold, in June, 1936, had been substantially the same. While the state earnestly insists that, according to the testimony of the engineers of the Railroad Commission whose estimates were based upon measurements of the pit, there was never more than 89,000 barrels of oil in the pit, the actual quantity gauged when all the oil was removed from the pit, and for which the purchaser paid, was 109,737 barrels. Consequently under the testimony the trial court’s finding - that such was the quantity of oil in the pit finds support in the evidence.
But Wylie claimed title to only 101,680 barrels, and that was the quantity for which he was awarded judgment by the district court of Gregg county. He is therefore limited in his complaint that the receivership was improperly extended of said pit of oil to the quantity claimed to be owned by him. The oil having been removed from the pit, sold, and the proceeds impounded, the actual control by the receivers of the pit itself, so far as this controversy is concerned, becomes immaterial.
Having shown that the receivership was improperly extended over property to which Wylie had title, which property had been sold, we conclude that as to $59,-*295482.80, being the proceeds from the sale at 58½ cents per barrel of said 101,680 barrels of oil, the receivership should be discharged, and said funds paid over to A. C. Wylie. The trial court’s judgment will therefore be reversed and judgment here rendered accordingly. However, as to the proceeds remaining from the sale of 109,737 barrels of said oil, after deducting that to which Wylie showed himself entitled, the receivership is undisturbed and the trial court’s judgment as to such excess is affirmed.
Granted in part and in part overruled.
On Motion of the State of Texas for Rehearing.
On motion for rehearing, predicated upon our holding in granting Wylie’s motion for rehearing herein on March 24, 1937, the state urgently insists that the trial court’s judgment should be reversed and remanded, instead of rendered in favor of Wylie, for the reason that the issue of whether the oil in question was illegal, as contended by the state, has never been properly adjudicated. The state was not a party to the suit in the district court of Gregg county and that issue was not, of course, litigated in that suit. Numerous motions have been filed in connection with this appeal, in response to one of which this court on December 2, 1936, entered its order directing the trial court, among other things, to conduct a hearing to ascertain the amount of oil in the Farris pit; ordering certain funds derived from the sale of said oil to be paid into the registry of the court; and in said order, which was approved by counsel for all parties concerned, it was expressly provided: “It is the further order of this court that this order shall in no wise affect or be decisive of any of the issues of fact or law not yet judicially determined, and that said payment and issues determined or to be determined by the trial court shall in no wise prejudice the rights of any party to litigate to a final judicial determination any facts now in issue involving said funds or issues raised between parties to this cause, or that may arise in the future involving said funds or issues raised between parties to this cause.”
At that time and consistently on this appeal, the state has contended and still contends that the oil in said Farris pit was illegal oil; and that, it having been sold, the proceeds therefrom should be confiscated. In our dismissal of the application of the state for writ of error from the order of the trial court directing the receivers to sell said oil, we ordered such dismissal without prejudice to the right of the state to have the issue of the legality, vel non, of said oil determined. Under all the circumstances we have therefore concluded, upon further consideration, that judgment should not be rendered in favor of Wylie, but that the receivership should be discharged as to the 101,680 barrels of oil described, and the cause reversed and remanded as ordered in our original opinion.
Granted in part and in part overruled.
On Appellant A. C. Wylie’s Motion for Rehearing.
On April 21, 1937, we granted the state’s motion for rehearing, and reversed and remanded this cause to the trial court as in our original opinion. After further consideration, upon further motion of Wylie, and a re-examination of the record on this appeal, we have concluded that we were in error in so doing, and that our opinion and order of March 24, 1937, reversing the trial court’s judgment herein appealed from, discharging the receivership as to the oil involved, and directing the proceeds from its sale to be paid over to Wylie, was correct and should stand as the order of this court.
In addition to the original, three supplemental transcripts have been filed on this appeal, one of which was filed after our original opinion was written. A further transcript was tendered, but permission to file same was refused. Thirteen motions asking for various orders have been filed, in addition to several conferences of various counsel with the court had prior to our disposition of the appeal on its merits. As a result no little confusion has occurred in the consideration of this appeal.
As stated in our original opinion, the main suit, to which the order appealed from herein is but ancillary, was by the state against the several named defendants for penalties. Wylie, so far as the record presented shows, has never been made a party defendant to that suit. The property here involved was summarily taken possession of by the receivers upon an unverified motion of such receivers, in which neither the state nor the Attorney General joined. No privity whatever be*296tween Wylie and the defendants to the main suit has been pleaded. Wylie intervened solely for the purpose of having the receivership vacated as to his property. The only ground asserted, in the unsigned answer of the receivers to Wylie’s motion, that such oil should be included in the receivership of the properties of the original defendants to the state’s suit, was that the -oil contained in said Farris pit had been conveyed on October 28, 1935, by the East Texas Refining Company, to the defendants named in the original suit. On the hearing on Wylie’s motion, the receivers wholly failed to make such proof. The East Texas Refining Company was not a party to the state’s suit, nor to this proceeding, and no privity between it and the defendants to the main suit was shown.
We find no pleadings either by the state or by the receivers in the record pertinent to this appeal wherein it is alleged that the oil in the Farris pit was illegal oil, or seeking to have it so adjudged, or to be declared a nuisance, or to fix any lien in favor of the State ■thereon, or seeking to have same confiscated in accordance with the provisions of the conservation laws. The inference might be drawn from the record of the hearing of December 18 and 19, 1936, that the state was insisting that said oil was illegal; but the purpose of that hearing, as directed by this court, was to determine the quantity of oil in said pit, the state’s contention being that there was much less oil in said pit, when the court ordered its sale in June, 1936, than the 101,680 barrels claimed by Wylie. Consequently, we find no pleadings by the state under which it could predicate, in this appeal, any claim against Wylie that said oil was illegal. That being true, and the oil having been sold and the proceeds deposited in the registry of the trial court, Wylie, upon vacation of the receivership as to same, was clearly entitled to have the possession of such funds, the property having been sold, restored to him. See Hayes v. Gardner (Tex.Civ.App.) 40 S.W.(2d) 917; 36 T.ex.Jur. § 60, p. 133.
We are not to be understood as passing upon the legality, vel non, of the oil in said Farris pit before it was sold. The statutes provide ample remedies the state may pursue against Wylie, if he has been guilty of any violation of the conservation laws. But no privity being shown between him and the defendants in the original suit filed by the state, Wylie is entitled to have that question determined in a proper suit in a court of competent jurisdiction filed by the state for that purpose. Even if the pleadings of the state, as shown in the record before us, had been sufficient to allege a violation by Wylie of the conservation laws —and they clearly are not- — manifestly there would have been a misjoinder of parties as to Wylie. While the appellate courts have authority to reverse and remand, in the interest of justice, a cause so that the losing party may have opportunity to amend his pleadings in the court below, this rule does not authorize a .remand so that the losing party may plead a new cause of action not theretofore alleged. And our conclusion is that not having charged Wylie with violation of the conservation laws in connection with the oil in the Farris pit, but the receivers having taken possession of it solely on the theory that such oil was the property of others who had violated such laws, the átate should not be permitted, after failing to show ownership thereof in other violators of such laws, thereafter, by amendment in such original suit (which has, according to a certified copy of a final judgment of the trial court filed herein already been disposed of), to compel Wylie to now litigate in that suit what, as to him, is an entirely separate cause of action from that originally brought. But it is expressly provided that our order of March 24, 1937, directing that proceeds to the extent of $59,482.80 be paid over to Wylie, is without prejudice to the rights of the state, if any it has, to proceed against Wylie, or such funds in his hands, by a proper suit in a court of competent jurisdiction for violation by him, if any, of the conservation laws of the state.
Appellant’s motion is therefore to this extent granted; our order of April 21, 1937, is set aside, the opinion of that date is withdrawn, and the order of March 24, 1937, subject to the above-stated limitations, is reinstated.
Granted in part.