
    Wheeler, et al. v. Peters.
    (Decided February 15, 1927.)
    Appeal from Elliott Circuit Court.
    Appeal and Error — Refusal to Open Judgment on Motion Supported by Affidavits Would N.ot be Disturbed, Where Not Against Weight of Evidence (Civil Code of Practice, Sections 518-520). — Where, in suit for injunction, order was made that planitiffs’ reply stand as controverted and judgment was entered dismissing petition, ruling of circuit court denying plaintiffs’ motion to correct order and open judgment would not be disturbed, Where not contrary to weight of evidence, in view of controverting affidavits, relief having been erroneously sought through motion instead of by petition, as provided by Civil Code of Practice, sections 518-520.
    S. S. WILLIS, W. E. MOBLEY and WHEELER & WHEELER for appellants.
    REDWINE & REDWINE for appellee.
   Opinion op the Court by

Commissioner Hobson

Affirming.

On December 29, 1921, G-ale Peters executed to James Porter a lease on his land for the purpose of drilling and operating for oil and gas. The lessee agreed to commence operation and drill one * well within six months from the date of the lease, unavoidable accidents excepted. A failure to drill the well or in lieu thereof to pay rent, as provided by the lease, rendered it null and void. The lease was for a term of one year and as long as -oil and gas were found. A certain royalty was to be paid Porter, on July 22, 1922, assigned the lease to Wheeler and Campbell. They, on December 15, 1922, filed this action in which they alleged that since the purchase of the lease by them they had at all times been diligent in the prosecution of the work in developing the property until the 11th day of December, 1922, on which date Peters wrongfully and without right, with force and arms, drove their employees from the property and away from the wells then on the property. They prayed an injunction restraining him from interfering with them in the operation of the property. A restraining order was granted. Peters filed, on December 16, 1922, an answer in which he denied the allegations of the petition and pleaded that the plaintiffs had failed to carry out the provisions of the lease; that a well was not drilled within six months; that the wells on the land were drilled under a former lease, which had been abandoned; that no work had been done at all under the lease made to Porter; that the plaintiff’s lease was void, and when they first came on the property, on December 11th, he refused to allow them to go to work and for this reason. No step was taken at the March term, 1923. At the July term, 1923, a reply was filed. The order filing it provided that by consent the affirmative allegations in the reply stood controverted; no proof was taken and at the November term, 1923, the case being submitted, judgment was entered dismissing the plaintiff’s petition, to which the plaintiff excepted and prayed an appeal to the Court of Appeals, which was granted. Nothing further occurred until the March term, 1924, when the plaintiff filed two affidavits and moved the court to set aside so much of the order entered at the July term as provided that the affirmative allegations of the reply should stand controverted and to set aside the judgment entered at the November term, 1923. The motion being heard, by the court at the August term, 1924, was overruled, to which the plaintiff excepted. No appeal was taken to this court from the judgment rendered 'at the November term, 1923, but, after the time for taking an appeal from that judgment had expired, an appeal was sued out in this court on July 21, 1926, from the order entered at the August term, 1924, overruling the motion to correct the order, taking the reply as controverted or to set aside the judgment subsequently entered.

1 The proceeding at the March term, 1924, to open the judgment rendered at the November term, 1923, should regularly have been by petition, as provided in sections 518-520 of the code; but if, passing this, the affidavits accompanying the motion may be treated by the court as a petition, no objection on this ground having been timely made in the circuit court, still the fact remains that the defendant filed two affidavits controverting the affidavits filed by the plaintiff and the circuit court overruled the motion. It cannot be maintained that the ruling of the circuit court is against the weight of the evidence. On questions of this sort the ruling of the circuit court will not be disturbed unless it is against the weight of the evidence.

Judgment affirmed.  