105 Mo. App. 242 | Mo. Ct. App. | 1904
This action was begun in the circuit court of Lincoln county upon an appeal bond bearing date December 28, 1898, executed to Van Stewárt as obligee, who sued to use of George W. Magruder, against the principal obligor and his sureties. The petition contained allegations of the recovery by Stewart of judgment in the circuit court against Miles for possession of realty described in a suit for forcible entry
The case of Hutchings to the use of Blackford v. Weems, 35 Mo. 285, lends some countenance to the appellant’s contention that the defect of parties plaintiff could be raised.by motion in arrest. It is to be observed, however, that that case originated before a justice of the peace, where the defendant could not demur. The doctrine universally followed is, that where a defect of parties plaintiff appears on the face of the petition,' it must be taken advantage of by demurrer. If the above case be a precedent in appellant’s favor, we must disregard it as authority, because there are later decisions of the Supreme Court directly opposed to it, and if it holds a defect of parties apparent on the face of the petition is not waived by answer and going to trial, it is out of the universal line of the law on the subject in this State and elsewhere. Reugger v. Linderberger, 53 Mo. 364; Butler v. Lawson, 72 Mo. l. c. 247; Pike v. Martindale, 91 Mo. 268; R. S. 1899, sec. 598.
In State to use of Saline county v. Sappington, 68 Mo. l. c. 457, it was held that, granting Saline .county had no interest in the subject-matter of the action (which was on the bond of the county treasurer for the safekeeping of the school funds) the defect of parties was waived by defendants answering and the same question could not be raised anew in their answer.
In State to use of Wolff v. Berning, 74 Mo. l. c. 99, the same ruling was made, though it appeared that the relator was not the only party interested in the subject-matter of the action, which was upon bond of defendant as executor, and the point of the objection was that relator was not solely interested in the estate but there were other parties interested.