
    SUN OIL CO. v. PFEIFFER et al.
    No. 79.
    District Court, W. D. Oklahoma.
    April 29, 1939.
    George H. Bowen and Donald H. Waid, both of Tulsa, Old., for plaintiff.
    A. R. Swank, of Stillwater, Okl., for ■ defendants.
   VAUGHT, District Judge.

This case is pending on motions to dismiss. The plaintiff is the owner of an oil lease under which the defendants are the royalty owners. The complaint alleges that prior to December 6, 1938, the one-eighth of the production was regularly paid to the defendants, as per the provisions of the lease; that on December 6, 1938, the defendants, by notice, canceled the division order and demanded full one hundred per cent of the one-eighth royalty.

It is inferred by the court, from the record in this case, that the royalty interest was paid on the usual basis of ninety-seven per cent.

The defendants have filed motions to dismiss and contend that the real controversy is over the three per cent of the -one-eighth royalty.

The complaint alleges “that the amount -involved in this controversy exclusive of interest and costs is in excess of Three Thousand ($3,000.00) Dollars.” The motions to dismiss allege “that the court lacks jurisdiction because the amount actually in controversy is less than $3,000.00 exclusive of interest and costs.”

There is nothing in the record, except the allegations in the complaint and the statement in the motions to dismiss, with respect to the amount in controversy and the motions to dismiss allege that the amount in controversy is less than $3,000.

A motion to dismiss is in effect a demurrer and for the purpose of the motion admits the allegations in the bill, and the court, in passing upon a motion to dismiss, is bound by the allegations in the bill.

The motions to dismiss are overruled and exceptions allowed. The defendants are allowed fifteen (IS) days in which to answer.  