McMurray v. State Bank

74 Mo. App. 394, 1898 Mo. App. LEXIS 322

Opinion

Gill, J.

— For reasons following, this appeal must be dismissed. This is a suit to enjoin a trustee’s sale under a deed of trust and to cancel the latter on the ground mainly that the debt had been paid. The defendant bank was made a party as the owner and holder of the alleged debt which had been sold and assigned to it by defendant Ensor. In addition to these the trustee named in the deed of trust, the sheriff of the county who was proceeding to advertise and sell the land on failure of the trustee to act, as also one William S. Wells, were made parties defendant.

On a trial below there was judgment for plaintiffs cancelling the debt and trust deed, and perpetually enjoining the trustee and sheriff from proceeding with the sale.

As appears from the record William S. Wells alone appealed. And it also appears that said Wells has no interest in the litigation. He is an unnecessary party, nor is there any judgment against him — not even for costs, for they are specifically adjudged against 'the defendant State Bank of Savannah. In his affidavit for appeal (which is the only affidavit filed) said Wells does not pretend even to act as agent for or in behalf of other defendants, but assumes to file the affidavit on his own account and “because he considers himself aggrieved by the judgment and decision of the court.” Since, then, said appellant Wells was in no sense of the word aggrieved by the judgment in the case within the meaning of the statute (R. S. 1889, sec. 2246), his appeal will be dismissed.

All concur.