Hedge v. Shedd , 5 Kan. App. 141 ( 1897 )

Mahan, P. J.

This was an action brought by the defendants in error against one Sullivan upon three promissory notes, in which an attachment was issued at the beginning of the suit and levied upon a crop of corn. The plaintiff in error intervened, claiming the corn under a chattel mortgage made to him by the defendant Sullivan. The issue presented was as to the validity of the mortgage given by Sullivan to the plaintiff in error. Pending the proceedings, by agreement of all the parties, the corn was sold and the proceeds paid into court to abide the event of the suit. The plaintiff took judgment by default against the defendant Sullivan. The issue upon the interplea was determined against the interpleader, and the fund was adjudged to be paid to the defendants in error in discharge of their judgment against Sullivan. Sullivan is not made a party to these proceedings in error and is not before the court, and the defendants in error move to dismiss.

Under the well-settled rule of the Supreme Court, as well as this court, his presence is necessary in order to give this court jurisdiction of the case. If the judgment in this case should be reversed and a new trial had, it might result in awarding to the plaintiff in error the fund which went to pay Sullivan's debt to the defendants in error, and in which Sullivan would have a direct interest and a right to protect the same in this court. By reason of his absence from these proceedings, the case will have to be dismissed.

The petition in error is dismissed.