State ex rel. and to Use of Merino v. Rose, No. 42376

CourtUnited States State Supreme Court of Missouri
Writing for the CourtCONKLING
Citation362 Mo. 181,240 S.W.2d 705
PartiesSTATE ex rel. and to Use of MERINO et al. v. ROSE, Judge.
Decision Date11 June 1951
Docket NumberNo. 42376

Page 705

240 S.W.2d 705
362 Mo. 181
STATE ex rel. and to Use of MERINO et al.
v.
ROSE, Judge.
No. 42376.
Supreme Court of Missouri, en Banc.
June 11, 1951.

[362 Mo. 182]

Page 706

Hubert Fuller, Princeton, for relator, Joe Merino.

Russell N. Pickett, Eugene E. Andereck, Phil Hauck, and Pickett & Pickett, all of Trenton, for relator, Byron Russell.

R. Leroy Miller, Trenton, for respondent.

[362 Mo. 183] CONKLING, Judge.

Prohibition. Upon petition therefor we issued our preliminary rule prohibiting Honorable V. C. Rose, as Judge of the Circuit Court of Mercer County, from proceeding further as against Joe Merino in a certain cause pending in said circuit court wherein Merino (by a third-party petition permitted to be filed by an order of respondent) has been made a third-party defendant. This case presents for our ruling a question which arose under our third-party practice statute (formerly Sec. 847.20 of Mo RSA), now RSMo 1949, Sec. 507.080.

On November 8, 1949, one Byron Russell was riding as a passenger in an automobile operated by Merino near Trenton, Missouri, when a collision occurred between Merino's automobile and one operated by one M. L. Elledge. On December 2, 1949, Russell filed in the circuit court an action for damages for alleged personal injuries against Elledge. Thereafter Elledge filed his answer in said cause. Russell then filed his reply. Thereafter Elledge (the original defendant) filed his motion for leave to file, as third-party plaintiff, a petition in the cause making Merino a third-party defendant.

Page 707

On September 11, 1950, that motion was sustained, the offered third-party petition was filed and summons was ordered issued. The third-party petition so filed is before us. Summons was served upon Merino on September 13, 1950. That third-party petition prayed judgment against Merino, '* * * for all sums, if any, that may be adjudged against him (Elledge) in favor of plaintiff, Byron Russell.' By leave of respondent the prayer of the third-party petition was amended on October 13, 1950 to pray for $15,000 damages. In the court's order of September 11, 1950 sustaining the motion for leave to file the third-party petition, the court recited also that the original plaintiff (Russell) refused 'to accept said party (Merino) as a party defendant.' But the motion for leave to file the third-party petition was nevertheless sustained, that petition was filed and Merino was served with summons as a third-party defendant. Russell did not amend his petition to state a claim or cause of action against Merino.

On September 30, 1950, Russell, as authorized by RSMo 1949, Sec. 537.060, for a consideration executed a written covenant not to sue Merino. The covenant is before us. On October 2, 1950 Merino filed his motion to be dropped as a third-party defendant. That motion the court overruled. Merino filed his answer to the third-party petition. Merino, by leave of court, thereafter withdrew his answer to the [362 Mo. 184] third-party petition and filed his motion to be dropped as a third-party defendant and to dismiss the third-party petition. That motion was overruled. Merino also moved the court to vacate the last named order, and that motion was likewise overruled.

On the same day that Russell filed his original suit against Elledge (December 2, 1949), Merino also filed suit in said circuit court against Elledge for damages for personal injuries alleged to have been sustained by Merino in the above mentioned automobile collision of November 8, 1949. In that action Elledge filed his answer and filed also his counterclaim therein praying damages for the injuries which it was alleged in the counterclaim he (Elledge) received in that collision of November 8, 1949. To that answer and counterclaim Merino filed reply.

Briefly summarized, the situation is: Russell was a passenger in Merino's car when a collision occurred with Elledge's car; each of the three claim to have...

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7 practice notes
  • Parks v. Union Carbide Corp., No. 61468
    • United States
    • Missouri Supreme Court
    • June 10, 1980
    ...May v. Bradford, 369 S.W.2d 225, 228 (Mo.1963); Crouch v. Tourtelot, 350 S.W.2d 799, 803 (Mo. banc 1961); State ex rel. Merino v. Rose, 362 Mo. 181, 240 S.W.2d 705, 707 (Mo. banc 1951); Layman v. Uniroyal, Inc., 558 S.W.2d 220, 225 (Mo.App.1977). This construction of § 537.060, RSMo 1978, w......
  • Missouri Pac. R. Co. v. Whitehead & Kales Co., No. 59906
    • United States
    • United States State Supreme Court of Missouri
    • April 28, 1978
    ...of both parties toward a third party. Donald v. Home Service Oil Co., 513 S.W.2d 426 (Mo.banc 1974); State ex rel. Merino v. Rose, 362 Mo. 181, 240 S.W.2d 705 (banc 1951); Best v. Yerkes, 247 Iowa 800, 77 N.W.2d 23 (1956); 1 J. Dooley, Modern Tort Law § 26.07, at 547 While Missouri Pacific ......
  • Kahn v. Prahl, No. 52139
    • United States
    • United States State Supreme Court of Missouri
    • April 10, 1967
    ...responsible to her. State ex rel. McClure v. Dinwiddie, 358 Mo. 15, 213 S.W.2d 127, 130(4, 5); State ex rel. Merino v. Rose, Mo., 240 S.W.2d 705, 707(1); Crouch v. Tourtelot, Mo., 350 S.W.2d 799, The second ground for awarding a new trial to Prahl on plaintiff's claim was that the verdict, ......
  • Campbell v. Preston, No. 50262
    • United States
    • United States State Supreme Court of Missouri
    • June 8, 1964
    ...350 S.W.2d 799, 806-807 ; State ex rel. Siegel v. McLaughlin, Mo.App., 315 S.W.2d 499, 508 ; State ex rel. and to Use of Merino v. Rose, 362 Mo. 181, 240 S.W.2d 705, 708 We have considered all questions presented, but since the reasons stated demonstrate that the cross-claim does not state ......
  • Request a trial to view additional results
7 cases
  • Parks v. Union Carbide Corp., No. 61468
    • United States
    • Missouri Supreme Court
    • June 10, 1980
    ...May v. Bradford, 369 S.W.2d 225, 228 (Mo.1963); Crouch v. Tourtelot, 350 S.W.2d 799, 803 (Mo. banc 1961); State ex rel. Merino v. Rose, 362 Mo. 181, 240 S.W.2d 705, 707 (Mo. banc 1951); Layman v. Uniroyal, Inc., 558 S.W.2d 220, 225 (Mo.App.1977). This construction of § 537.060, RSMo 1978, w......
  • Missouri Pac. R. Co. v. Whitehead & Kales Co., No. 59906
    • United States
    • United States State Supreme Court of Missouri
    • April 28, 1978
    ...of both parties toward a third party. Donald v. Home Service Oil Co., 513 S.W.2d 426 (Mo.banc 1974); State ex rel. Merino v. Rose, 362 Mo. 181, 240 S.W.2d 705 (banc 1951); Best v. Yerkes, 247 Iowa 800, 77 N.W.2d 23 (1956); 1 J. Dooley, Modern Tort Law § 26.07, at 547 While Missouri Pacific ......
  • Kahn v. Prahl, No. 52139
    • United States
    • United States State Supreme Court of Missouri
    • April 10, 1967
    ...responsible to her. State ex rel. McClure v. Dinwiddie, 358 Mo. 15, 213 S.W.2d 127, 130(4, 5); State ex rel. Merino v. Rose, Mo., 240 S.W.2d 705, 707(1); Crouch v. Tourtelot, Mo., 350 S.W.2d 799, The second ground for awarding a new trial to Prahl on plaintiff's claim was that the verdict, ......
  • Campbell v. Preston, No. 50262
    • United States
    • United States State Supreme Court of Missouri
    • June 8, 1964
    ...350 S.W.2d 799, 806-807 ; State ex rel. Siegel v. McLaughlin, Mo.App., 315 S.W.2d 499, 508 ; State ex rel. and to Use of Merino v. Rose, 362 Mo. 181, 240 S.W.2d 705, 708 We have considered all questions presented, but since the reasons stated demonstrate that the cross-claim does not state ......
  • Request a trial to view additional results

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