Le Moyne v. Anderson

• Decision Date: 17 October 1906
• Citation: 123 Ky. 584,96 S.W. 843
• Parties: LE MOYNE v. ANDERSON ET AL.
• Court: Kentucky Court of Appeals

96 S.W. 843

123 Ky. 584

LE MOYNE v. ANDERSON ET AL.

Court of Appeals of Kentucky.

October 17, 1906

Appeal from Circuit Court, Whitley County.

"To be officially reported."

Suit by John V. Le Moyne against J. R. Anderson, in which Calvin Trammell and another intervene. From a judgment in favor of interveners, plaintiff appeals. Affirmed.

Greene & Van Winkle, for appellant.

Morrow & Stephens, for appellees.

HOBSON C.J.

Appellant John V. Le Moyne, instituted this action on August 5, 1904 against J. R. Anderson. He alleged in his petition that he was the owner and entitled to the possession of a certain boundary of land; that Anderson in August, 1904, had entered on the land, forcibly cutting and carrying away the timber which represented nearly the entire value of the land; that he was then engaged in cutting and removing the timber from the land, and would continue to do so unless restrained; that he was insolvent, and a judgment against him for the value of the timber would be uncollectible. He prayed judgment for $200 damages, and that the defendant be enjoined from further trespassing upon the land. An injunction was obtained as prayed in the petition. Anderson did not answer, but at the August term, 1904, Calvin Trammell and Sarah Roberts filed their petition to become parties to the action, and on their motion the petition was taken as their answer and made a cross-petition over against the plaintiff. They alleged that they were the owners of the tract of land described in the petition; that Anderson went upon it and cut the timber complained of by their license and authority. They set up the boundaries which they claimed, alleging that they had been in actual adverse possession of it since February 16, 1888. They denied that plaintiff was the owner of any part of the land and also pleaded that his purchase was champertous. They prayed that their title to the land be quieted. The plaintiff objected to their being made defendants, and moved to strike out their petition, upon the ground that such intervention was not allowed by the Code of Practice. The court overruled the motion. Issue was then made up, and on final hearing the court dismissed both the petition and the cross-petition and adjudged the defendants Trammell and Roberts their costs.

Though Anderson did not file an answer, the answer that Trammell and Roberts filed was a complete defense to the action, and no judgment could be taken against Anderson after that answer was filed, unless the plaintiff made out his case. The rule on the subject is thus stated in Newman on Pleading (page 555): "If any one of the defendants in an action relies upon a plea of infancy, coverture, limitation, non est factum, or any other defense merely personal, or which does not go to the whole action, the plaintiff may recover as to some of the defendants, while he fails as to others. But if either of the defendants should, in a joint or separate answer, rely upon a defense which goes to the entire merits of the action, such as payment, accord, and satisfaction, or other meritorious defense which shows that the plaintiff ought not to recover in the action against him, a judgment cannot be rendered in the action against any of the defendants until that plea is disposed of; and, if the defendant should succeed upon such a plea, the action must be dismissed as to all of the joint defendants."

The court did not err in allowing Trammell and Roberts to file their petition and defend the action. The title to the land was the thing in controversy. Anderson, who had cut the timber for Trammell and Roberts, had no real interest in the controversy. The Code of Practice provides that every action must be prosecuted by the real party in interest, and any person may be made defendant who claims an interest in the controversy adverse to...