Deware v. Wyatt

• Decision Date: 31 July 1872
• Citation: 50 Mo. 236
• Parties: WM. DEWARE, Defendant in Error, v. BENJAMIN B. WYATT, Plaintiff in Error.
• Court: Missouri Supreme Court

50 Mo. 236

WM. DEWARE, Defendant in Error,

v.BENJAMIN B. WYATT, Plaintiff in Error.

Supreme Court of Missouri.

July Term, 1872.

Error to Johnson Court of Common Pleas.

H. B. Johnson and R. F. Wingate, for plaintiff in error.

Crittenden & Cockrell and Elliott & Blodgett, for defendant in error.

The facts stated, if true, were no defense to the action. The State court having obtained jurisdiction over the person of the defendant and the subject-matter of the action, has the right to retain it, and will retain it, unless the defendant, by affidavit filed at the first term, in pursuance of the twelfth section of the judiciary act of 1789, removes the cause into the Circuit Court of the United States. (Rogers v. City of Cincinnati, 5 McLean, 337; McLeod v. Duncan, id. 342.)BLISS, Judge, delivered the opinion of the court.

The plaintiff filed his petition under the statute (Wagn. Stat. 1022, § 53), showing that he was in possession as owner of certain lands to which defendant makes some claim, and asks that he be summoned to show cause why he should not bring an action to try his title. The preliminary order was issued, and defendant answered that he was a citizen of Kentucky, and had already, and since the service of notice, commenced proceedings to vindicate his claim in the United States Circuit Court of Missouri. This answer was stricken out on motion and a peremptory order was issued, to reverse which defendant brings the case to this court.

The action of the court in striking out the answer was erroneous, as it furnished a good reason why the defendant should not be required to bring another suit. He had a right to bring his action in the Federal court, and it was not the intention of the statute to deprive him of that right, nor could it be done if such was the design. Counsel seem to imagine that the proceeding was a suit to try the title; that therefore the State court has acquired jurisdiction; and that defendant, if he would go into the Federal courts, must take steps to transfer the cause. But, in the language of Judge Ewing, in Von Phul v. Prim, 31 Mo. 333, “this proceeding is not one for the purpose of settling the title to the premises in the first instance, but is only preliminary to an action which the defendant or adverse claimant may be ordered to bring for that purpose;” and the order of the court after appearance is not respecting the title, but the bringing the action. The original proceeding would ordinarily be instituted where the lands...