Hayden v. Stewart
| Decision Date | 31 July 1858 |
| Citation | 27 Mo. 286 |
| Parties | HAYDEN, Defendant in Error, v. STEWART et al., Plaintiffs in Error. |
| Court | Missouri Supreme Court |
1. Where, in an action of ejectment, the person from or through whom the defendant claims title to the premises has, on motion of the defendant, been made a co-defendant, the plaintiff is not entitled to dismiss the suit as to such co-defendant.
2. Under the practice act of 1849 an equitable defense might be made to an action of ejectment.
Error to Dade Circuit Court.
This was an action in the nature of an action of ejectment to recover possession of certain premises in the county of Polk. The action was commenced in the year 1852, in the Polk Circuit Court. On motion of Stewart, the original defendant, one Toler, through whom he claimed title, was made a co-defendant. Toler and Stewart filed a joint answer (which was verified by the affidavit of Toler alone), putting in issue the allegations of the petition, and setting up that a certain mortgage and lease, executed by Toler, through which plaintiff claimed a right to the possession of the premises in controversy, was obtained from said Toler by fraud on the part of plaintiff. The court, on motion, struck out this equitable defense. The cause was then taken by change of venue to the Dade Circuit Court, which re-instated that portion of the answer stricken out On motion of the plaintiff, the court vacated the order of the Polk Circuit Court substituting Toler as co-defendant, and permitted plaintiff to dismiss the case as to Toler. The court refused to permit Stewart to file a separate answer, and gave judgment against him, disregarding the joint answer that had been put in by Toler and Stewart.
F. P. Wright, for plaintiffs in error.
I. The Circuit Court of Polk erred in striking out that part of the answer which set up fraud and which constituted an equitable defense. (See Tibeau v. Tibeau, 19 Mo. 98.) The Circuit Court of Dade county erred in setting aside the order of the Polk Circuit Court making Toler a co-defendant; also in striking out the answer of Stewart, and also in rendering judgment for the want of an answer after the same was stricken out. The affidavit of his co-defendant was sufficient. (Huntington v. House, 22 Mo. 365.) By leave of a previous court the answer had been further verified by Stewart's attorney. Stewart should have been permitted to file a new answer instanter, as he requested.
Gardenhire, for defendant in error.
No opinion of the merits of this case can be drawn from the record, as it appears to have been determined upon points...
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