| Mo. | Jul 15, 1872
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" court="Mo." date_filed="1861-01-15" href="https://app.midpage.ai/document/von-phul-v-penn-8000991?utm_source=webapp" opinion_id="8000991">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 purposeand 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 lie; and the action being a local one, if a suit were instituted in the State court, it would be in the ;same county. But it is sufficient if it be instituted in any court having jurisdiction, and the claimant cannot be controlled by the person in possession in his selection of the tribunal; and if his return shows that an action has been commenced, the object of the petition is obtained and no further order can be had.
The Supreme Court of Massachusetts, in Macomber v. Jaffray, 4 Gray, 82, under a similar statute, deny the right to proceed
As the defendant claims an interest, and has selected another tribunal in which to prosecute his claim, a difficulty arises in relation to the costs. The judgment must be reversed and the cause remanded, and all the costs made after the filing of defendant’s answer should be taxed against the plaintiff; but the costs made before should, I think, be recovered of defendant.