Traven v. Dawson

65 Mo. App. 93, 1896 Mo. App. LEXIS 152

• Court: Missouri Court of Appeals
• Decided: February 3, 1896
• Status: Published

Opinion

G-ill, J.

Travin brought suit against defendants Dawson and wife, wherein it was charged that the Daw-sons had instituted, in a justice’s court, a replevin action to recover a certain lot of engraver’s tools, etc.; that in their complaint the Dawsons had falsely and fraudulently alleged the property to have been wrongfully taken and that the cause of action accrued within one year before filing said petition — all this for the purpose of depriving said Travin of giving bond and retaining the property; that the claim of the said Dawsons was based on an alleged bill of sale in the nature of a mortgage, to. secure a pretended obligation of Travin to pay said Dawsons $200; that said bill of sale or mortgage was a forgery, etc., and Travin prayed the court to enjoin the prosecution of the replevin suit of Dawson v. Travin and that the court set aside and cancel said forged bill of sale or-mortgage.

On a preliminary application, a temporary injunction was granted; and thereafter the Dawsons filed their answer, putting in issue the allegations of Travin’s petition.

Thereupon Silver came into court and filed an intervening petition, in substance alleging that he was the absolute owner of the property in controversy, and that his title thereto was acquired by purchase from Travin, shortly after the date and recording of said bill of sale or mortgage to the Dawsons. Silver also alleged that said Dawson mortgage was a forgery, and in his intervener’s petition prayed the court to declare his title, to set aside said Dawson mortgage and forever bar all said parties from thereafter making any claim to said goods, etc.

Thereafter the Dawsons filed a motion asking the court to strikeout Silver’s intervening ■ petition, “for the reason,” as set out in the motion, “that this is a suit by injunction, and it is not competent for inter-vener to intervene herein.”

This motion was sustained and Silver has appealed.

Respondents have failed to file any brief and we are at a loss to understand upon what theory the foregoing motion to strike out was sustained. From the face of his petition, the intervener, Silver, has substantial interests at stake in this controversy. He claims to be the owner of the chattels, the title of which is involved, and has cause to complain of a false and fraudulent mortgage which assumes to cover them. It would seem, then, entirely proper that said Silver be permitted to enter the pending litigation and have the entire matter settled in one and the same suit. While perhaps Silver was not a necessary party to the suit as originally begun, he was not, however, an improper party. He might have remained out, taken no part in the litigation, and would not then, of course, be bound by any decree entered. But it appears proper to admit him as a party and thereby save the necessity of another action. See Carter v. Mills, 30 Mo. 432.

“It is the theory and requirement of our practice act, that all parties interested shall be brought in and thus have all conflicting interests adjusted. This duty is enjoined on the trial court by statutory enactment.” Hilton v. City of St. Louis, 99 Mo. 199.

In our opinion, the trial court erred in striking out the intervener’s pleading. Judgment reversed and cause remanded.