Howe v. Meriwether

172 F. 868, 97 C.C.A. 288, 1909 U.S. App. LEXIS 5038

• Court: Court of Appeals for the Eighth Circuit
• Decided: August 9, 1909
• Docket: No. 2,978
• Status: Published

Opinion

CA'RUAND, District Judge.

On September 23, 1907, Meriwether commenced an action in ejectment against Henry Black, James Black, Wilda Black, Joseph Turner, and .Prances Robinson, in the United States Circuit Court for the District of Kansas, to recover the possession of a certain piece of land located in Wyandotte county, in said state. December 14, 1907, said defendants filed an answer in said cause. June 9, 1908, judgment for the plaintiff was rendered in said action tipou stipulation. At the time the motion for judgment was made one S. K. Howe made an application to the court to be substituted as defendant in said action. The motion was denied, and Howe sued out a writ of error.

Section 1909, Gen. St. Kan. 1905, provides as follows:

“When In an action for the recovery of real or personal property any person having an interest in the property applies to he made a party, the court may order it done.”

The ruling of the trial court was right. The moving papers disclosed no interest whatever in Howe to the land in dispute. Under the statute quoted, it was not sufficient for Howe to merely allege that he had an interest in the land in controversy; but he was bound to make that interest appear by proper allegations in his petition, so that the court could see that, if the facts staled were true, he had such a direct and immediate interest in the matter in litigation that he would either ‘ gain or lose by the direct legal operation and effect of the judgment. Smith v. Gale, 144 U. S. 517, 12 Sup. Ct. 674, 36 L. Ed. 521; Horn v. Water Co., 13 Cal. 69, 73 Am. Dec. 569; Lewis v. Harwood, 28 Minn. 428. 10 N. W. 586; Coffey v. Greenfield, 62 Cal. 602.

Judgment affirmed.