70 Mo. 541 | Mo. | 1879
The insuperable obstacle to the. relief asked in this case is, that Ramsey, the joint owner- with defendant of the judgment against plaintiff, is not made a party to the case. Although he has no interest whatever in the controversy between plaintiff and defendant, it is impossible for the court, in his. absence, to determine the extent of Davenport’s interest. Ramsey has a right to be heard on that question; he is a necessary party to a full investigation of the facts upon which plaintiff’s relief depends. The assertion in.the bill that defendant is owner of the larger part of the judgment is mere assertion and amounts to nothing without proof, and Ramsey must have an opportunity of being heard on this question.
The case of Simson v. Hart, 14 John. 64, relied on by appellant, is unlike the present in a very important particular. The facts in that case were the converse of those in the present, and they tend to establish the principle upon which courts of equity act, to which we have already adverted. There A, the plaintiff, had a judgment against B & 0 in an action of assault and battery, and B recovered a judgment against A of the same character. B was insolvent and C was extremely embarrassed, and A asked to have the judgment recovered by him against B & C applied in satisfaction of the judgment recovered by B. This was allowed, and' Judge Spencer, of the Supreme Court, observed that “ such a state of facts furnished a strong and substantial basis for the interposition of a court of equity, on the ground of meditated fraud. Nothing could be more unjust,” he proceeds to say, “ than to leave to the respondent the power of collecting his judgment of the appellant (A) against which, from the insolvent condition of the respondent (B) and the embarrassed state of his father, (C,)
This, it will be at one perceived, is not the case here, for the judgment against the plaintiff, Fulkerson, was á joint judgment of Ramsey and Davenport, not for a tort, but for personal property bought of them by the plaintiff. Without a settlement between Ramsey and Davenport, it could not be ascertained how much of this debt was due to Davenport against whom were the judgments of plaintiff asked to be set off. Davenport and Ramsey had a joint