State ex rel. and to Use of Merino v. Rose, 42376

• Citation: 362 Mo. 181,240 S.W.2d 705
• Decision Date: 11 June 1951
• Docket Number: No. 42376,42376
• Parties: STATE ex rel. and to Use of MERINO et al. v. ROSE, Judge.
• Court: United States State Supreme Court of Missouri

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.

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.

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. 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 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 been injured; Russell sued Elledge; Merino sued Elledge and Elledge in that case counterclaimed against Merino. In Russell's suit against Elledge, the latter sought leave to file a petition making Merino a third-party defendant and the respondent Judge permitted the filing of that third-party petition. But Russell declined to accept Merino as a third-party defendant, did not amend his petition to state a claim or cause of action against Merino, and covenanted in writing not to sue Merino. Thereupon Merino by motion sought to be dropped as a third-party defendant and have the third-party petition dismissed, but respondent declined to enter such an order, and now continues to hold Merino in the case as third-party defendant.

Counsel for Elledge (who filed the brief here on behalf of respondent Judge) cite but one case, State ex rel. McClure v. Dinwiddie, 358 Mo. 15, 213 S.W.2d 127. In that case we held that if, as here, the original plaintiff declined to accept the tendered third-party defendant as a defendant in the case, and declined to amend plaintiff's petition to state a cause of action against such tendered third-party defendant that no judgment could be had in favor of plaintiff against the tendered third-party defendant. In this case plaintiff did not amend and state a cause of action against the tendered third-party defendant, and, by contract covenanted not to sue Merino. It is therefore not material to the merits of this controversy that the third-party petition filed by Elledge may state a cause of action in favor of plaintiff and against Merino for, under these circumstances, Russell could have no judgment against Merino in any event. State ex rel. McClure v. Dinwiddie, supra.

Our third-party practice statute, Sec. 507.080, authorizes a third-party petition to be filed by a third-party plaintiff against a person not a party to the action 'who is or may be liable to him (the third-party plaintiff) or to the plaintiff for all or a part of the plaintiff's claim against him.'

Whether the respondent Judge may hold Merino in the case as a defendant, and proceed further in the Russell case against Merino, of necessity must depend upon whether the third-party petition (filed by Elledge against Merino) states a cause of action in favor of Elledge and against Merino. We next examine the petition to determine that fact.

The third-party petition, in its first and introductory paragraph, alleges Merino was not a party to the original action, but that Merino, '* * * is, or may be, liable to plaintiff, or to this third-party plaintiff, M. L. Elledge, for all or part of the claim of the said plaintiff, Byron Russell, which liability is hereinafter set out.' In the succeeding paragraphs of...