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| Home > Statutes > Usa Missouri |
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USA Statutes : missouri
Title : CIVIL PROCEDURE AND LIMITATIONS
Chapter : Chapter 507 Parties
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Every action shall be prosecuted in the name of the real party
in interest, but an executor, administrator, personal representative,
guardian, conservator, trustee of an express trust, a party with whom or
in whose name a contract has been made for the benefit of another, or a
party authorized by statute may sue in his own name in such
representative capacity without joining with him the party for whose
benefit the action is brought; and when a statute so provides, an action
for the use or benefit of another shall be brought in the name of the
state of Missouri. (RSMo 1939 §§ 849, 850, 855, A.L. 1943 p. 353 § 11,
A.L. 1983 S.B. 44 & 45)
Prior revisions: 1929 §§ 698, 699; 1919 §§ 1155, 1156; 1909 §§ 1729, 1730
CROSS REFERENCES: Assignee of bond, note or account may sue assignor,
when, RSMo 431.170 Collectors of United States revenue may sue, RSMo
14.060 Resident trustee, necessary party, plaintiff in suit to foreclose
deed of trust, RSMo 443.350 Suits on county contracts, how brought, RSMo
431.080 Taxpayer may sue to enjoin registration of bonds of political
subdivisions, RSMo 108.240 Wrongful death, damages, by whom recoverable,
RSMo 537.080
(1975) Insurer who pays a property loss and receives an "assignment" from
insured has exclusive right to maintain suit against tort-feasor.
Subrogation leaves legal title in insured. State Farm Mutual Automobile
Insurance Co. v. Jessee (Mo.), 523 S.W.2d 832.
(1977) Held, seducee is real party in interest and may sue in her own
name for damages arising from seduction. Piggott v. Miller (A.), 557
S.W.2d 692.
1. Whenever a claim exists under the law of another state,
action thereon may be brought in this state by
(1) The person or persons entitled to the proceeds of such claim if he or
they are authorized to bring such action by the laws of said other state;
(2) The executor, administrator, guardian, guardian ad litem or other
person empowered by the laws of said other state to sue in a
representative capacity if the person or persons entitled to the proceeds
of such claim are not authorized to sue in such cases under the law of
said other state.
2. In the cases mentioned in subdivision (2), the proceeds of the action,
resulting either from judgment or settlement, shall be paid to the person
bringing such suit and such person is authorized to satisfy the judgment
and execute release. Such person to whom the proceeds are paid shall have
authority to distribute and pay same to the person or persons entitled
thereto, according to their respective interests therein, under the laws
of said other state. (RSMo 1939 §§ 856, 857, 858, A.L. 1943 p. 353 § 14)
Prior revisions: 1929 §§ 705, 706, 707; 1919 §§ 1162, 1163, 1164; 1909 §§
1736, 1737, 1738
(1978) As a matter of comity, Missouri has by this statute expanded the
availability of its courts to those persons who lack capacity in other
states. Huff v. LaSieur (A.), 571 S.W.2d 654.
1. Subject to the provisions of section 507.070, persons having
a joint interest shall be made parties and be joined on the same side as
plaintiffs or defendants. When a person who should join as a plaintiff
refuses to do so, or his consent cannot be obtained, he may be made a
defendant.
2. When a complete determination of the controversy cannot be had without
the presence of other parties, the court may order them to be brought in
by an amendment of the petition, or by a supplemental petition and a new
summons. (RSMo 1939 §§ 853, 972, A.L. 1943 p. 353 § 15)
Prior revisions: 1929 §§ 702, 820; 1919 §§ 1159, 1275; 1909 §§ 1733, 1849
CROSS REFERENCES: Copartners assuming joint obligation to be sued, how,
RSMo 431.140 Court to order parties brought in as defendants, when, RSMo
509.470
1. All persons may join in one action as plaintiffs if they
assert any right to relief jointly, severally, or in the alternative in
respect of or arising out of the same transaction, occurrence, or series
of transactions or occurrences and if any question of law or fact common
to all of them will arise in the action. All persons may be joined in one
action as defendants if there is asserted against them jointly,
severally, or in the alternative, any right to relief in respect of or
arising out of the same transaction, occurrence, or series of
transactions or occurrences and if any question of law or fact common to
all of them will arise in the action. A plaintiff or defendant need not
be interested in obtaining or defending against all the relief demanded.
Judgment may be given for one or more of the plaintiffs according to
their respective rights to relief, and against one or more defendants
according to their respective liabilities.
2. The court may make such orders as will prevent a party from being
embarrassed, delayed, or put to expense by the inclusion of a party
against whom he asserts no claim and who asserts no claim against him,
and may order separate trials or make other orders to prevent delay or
prejudice. (L. 1943 p. 353 § 16)
(1978) Held, that a jury in the same or separate trial at the discretion
of the trial court, should be charged with the responsibility for
determining a relative distribution of fault and liability for damages
flowing from a tort. Missouri Pacific Railroad Co. v. Whitehead & Kales
Co. (Mo.), 566 S.W.2d 466.
1. Misjoinder of parties is not ground for dismissal of an
action. Parties may be dropped or added by order of the court on motion
of any party or of its own initiative at any stage of the action and on
such terms as are just. Any claim against a party may be severed and
proceeded with separately.
2. A motion to drop or add parties may be made at the same time as other
motions provided for in section 509.290, RSMo, and if so made, the
provisions of section 509.340, RSMo, with reference to the consolidation
of motions and waiver of objections shall also apply. If said motion is
made at any other time, the hearing and determination thereof shall not
delay the trial. Objections on account of misjoinder or nonjoinder of
parties may also be raised by answer or reply. (L. 1943 p. 353 § 17, A.
1949 H.B. 2117)
Persons having claims against the plaintiff may be joined as
defendants and required to interplead when their claims are such that the
plaintiff is or may be exposed to double or multiple liability. It is not
ground for objection to the joinder that the claims of the several
claimants or the titles on which their claims depend do not have a common
origin or are not identical but are adverse to and independent of one
another, or that the plaintiff avers that he is not liable in whole or in
part to any or all of the claimants. A defendant exposed to similar
liability may obtain such interpleader by way of cross-claim or
counterclaim. The provisions of this section supplement and do not in any
way limit the joinder of parties permitted in section 507.040. (L. 1943
p. 353 § 18)
1. If persons constituting a class are very numerous or it is
impracticable to bring them all before the court, such of them, one or
more, as will fairly insure adequate representation of all may, on behalf
of all, sue or be sued, when the character of the right sought to be
enforced for or against the class is
(1) Joint, or common, or secondary in a sense that the owner of a primary
right refuses to enforce that right and a member of the class thereby
becomes entitled to enforce it;
(2) Several, and the object of the action is the adjudication of claims
which do or may affect specific property involved in the action; or
(3) Several, and there is a common question of law or fact affecting the
several rights and a common relief is sought. Nothing in this section
shall be construed to affect the rights or liabilities of labor unions to
sue or be sued.
2. In an action brought to enforce a secondary right on the part of one
or more shareholders in an association, incorporated or unincorporated,
because the association refuses to enforce rights which may properly be
asserted by it, the petition shall aver that the plaintiff was a
shareholder at the time of the transaction of which he complains or that
his share thereafter devolved on him by operation of law. The petition
shall also set forth with particularity the efforts of the plaintiff to
secure from the managing directors or trustees and, if necessary, from
the shareholders such action as he desires, and the reasons for his
failure to obtain such action or the reasons for not making such effort.
3. A class action shall not be dismissed or compromised without the
approval of the court. If the right sought to be enforced is one defined
in subdivision (1) of subsection 1 notice of the proposed dismissal or
compromise shall be given to all members of the class in such manner as
the court directs. If the right is one defined in subdivisions (2) or (3)
of subsection 1 notice shall be given only after the court requires it.
(L. 1943 p. 353 § 19)
1. Before filing his answer, a defendant may move ex parte or,
after the filing of his answer, on notice to the plaintiff, for leave as
a third-party plaintiff to file a petition and serve a summons upon a
person not a party to the action who is or may be liable to him or to the
plaintiff for all or part of the plaintiff's claim against him. If the
motion is granted and the petition is filed and summons served, the
person so served, herein called the third-party defendant, shall make his
defenses, counterclaims and cross-claims against the plaintiff, or any
other party as provided in this (civil) code. The third-party defendant
may assert any defenses which the third-party plaintiff has to the
plaintiff's claim. The third-party defendant is bound by the adjudication
of the third-party plaintiff's liability to the plaintiff, as well as of
his own to the plaintiff or to the third-party plaintiff. The plaintiff
may amend his pleadings to assert against the third-party defendant any
claim which the plaintiff might have asserted against the third-party
defendant had he been joined originally as a defendant. A third-party
defendant may proceed under this section against any person not a party
to the action who is or may be liable to him or to the third-party
plaintiff for all or part of the claim made in the action against the
third-party defendant.
2. When a counterclaim is asserted against a plaintiff, he may cause a
third party to be brought in under circumstances which under this section
would entitle a defendant to do so. (L. 1943 p. 353 § 20)
1. Upon timely application anyone shall be permitted to
intervene in an action
(1) When a statute confers an unconditional right to intervene; or
(2) When the representation of the applicant's interest by existing
parties is or may be inadequate and the applicant is or may be bound by a
judgment in the action; or
(3) When the applicant is so situated as to be adversely affected by a
distribution or other disposition of property in the custody of the court
or of an officer thereof.
2. Upon timely application anyone may be permitted to intervene in an
action
(1) When a statute confers a conditional right to intervene; or
(2) When an applicant's claim or defense and the main action have a
question of law or fact in common. In exercising its discretion the court
shall consider whether the intervention will unduly delay or prejudice
the adjudication of the rights of the original parties.
3. (1) A person desiring to intervene shall serve a motion to intervene
upon all parties affected thereby. The motion shall state the grounds
therefor, and shall be accompanied by a pleading setting forth the claim
or defense for which intervention is sought. The same procedure shall be
followed when a statute of this state gives a right to intervene.
(2) When the validity of a statute, regulation or constitutional
provision of this state, or an ordinance or regulation of a governmental
subdivision thereof affecting the public interest is drawn in question in
any action to which the state or governmental subdivision or an officer,
agency or employee thereof is not a party, the court may in its
discretion notify the chief legal officer of the state or subdivision
thereof affected.
(3) In all cases and proceedings wherein the validity of a statute,
regulation or constitutional provision of this state affecting the public
interest is drawn in question, and the state or an officer, agency or
employee thereof is not a party, the state of Missouri may in the
discretion of the court be permitted to intervene, upon proper
application.
(4) In all cases and proceedings wherein the validity of an ordinance or
regulation of any governmental subdivision of this state affecting the
public interest is drawn in question, and the governmental subdivision,
or an officer, agency or employee thereof is not a party, the
governmental subdivision may in the discretion of the court be permitted
to intervene, upon proper application. (L. 1943 p. 353 § 21)
(1980) Foster parents who have had child in physical custody for extended
period of years did not have requisite interest to intervene as a matter
of right in proceeding by natural mother to regain custody of her
children. In re Matter of Trapp (Mo.), 595 S.W.2d 193.
1. (1) If a party dies and the claim is not thereby
extinguished, the court shall on motion order substitution of the proper
parties. The motion for substitution may be made by the successors or
representatives of the deceased party or by any party and, together with
the notice of the hearing, shall be served on the parties as provided in
section 506.100, RSMo, and upon persons not parties in the manner
provided for the service of a summons.
(2) In the event of the death of one or more of the plaintiffs or of one
or more of the defendants in an action in which the right sought to be
enforced survives only to the surviving plaintiffs or only against the
surviving defendants, the action does not abate. The death shall be
suggested upon the record and the action shall proceed in favor of or
against the surviving parties.
(3) If the death occurs prior to final judgment or after final judgment
and before appeal and substitution or motion therefor is not made within
nine months after the first published notice of letters testamentary or
of administration, the action shall be dismissed as to the deceased
party; if death occurs after appeal and before final determination
thereof and substitution or motion therefor is not made in the appellate
court where the appeal is pending within nine months after the first
published notice of letters testamentary or of administration, the appeal
shall be dismissed as to the deceased party.
2. If a party becomes mentally incapacitated, the court upon motion
served as provided in subsection 1 may allow the action to be continued
by or against his representative.
3. In case of any transfer of interest, the action may be continued by or
against the original party, unless the court upon motion directs the
person to whom the interest is transferred to be substituted in the
action or joined with the original party. Service of the motion shall be
made as provided in subsection 1.
4. When a corporation has been sued and served with process or has
appeared while in being, and is thereafter dissolved or its charter
forfeited, the action shall not be affected thereby and any judgment
obtained shall have the effect of a judgment against the last board of
directors, in a representative capacity, although the members of the
board were not joined in the action.
5. When any public officer is a party to an action and during its
pendency dies, resigns, or otherwise ceases to hold office, the action
may be continued and maintained by or against his successor upon motion
made within one year. Before a substitution is made, the party or officer
to be affected, unless expressly assenting thereto, shall be given
reasonable notice of the application therefor and accorded an opportunity
to object. If no successor is otherwise appointed or elected, the court
in which the action is pending may appoint a successor for the
prosecution or defense of the action. (L. 1943 p. 353 § 22, A.L. 1953 p.
313, A.L. 1957 p. 292, A.L. 1983 S.B. 44 & 45)
Suits by infants may only be commenced and prosecuted, either:
First, by a duly appointed guardian or conservator of such infant; or,
second, by a next friend appointed for him in such suit; or, third, if
asserted by counterclaim, by a guardian ad litem. (RSMo 1939 § 859, A.L.
1959 H.B. 537, A.L. 1983 S.B. 44 & 45)
Prior revisions: 1929 § 708; 1919 § 1165; 1909 § 1739
As used in sections 507.110 to 507.220, the term "infant" means
any person who has not attained the age of eighteen years. All persons of
the age of eighteen years or older, not otherwise disqualified, may
commence, prosecute, or defend any action in his own name as the real
party in interest. (L. 1976 S.B. 500 § 1)
(1979) Statute is to be construed to mean persons who have not attained
age of 18 years. Holoman v. Harris (A.), 585 S.W.2d 530.
The appointment of a next friend for an infant shall be made by
the court in which the suit is intended to be brought, or by a judge or
clerk thereof. (RSMo 1939 § 860)
Prior revisions: 1929 § 709; 1919 § 1166; 1909 § 1740
Such appointment shall be made on the petition in writing of
such infant, if of the age of fourteen years, and the written consent of
the person proposed to be next friend to such infant acknowledged before,
or proved to the court or officer making the appointment. (RSMo 1939 §
861)
Prior revisions: 1929 § 710; 1919 § 1167; 1909 § 1741
If such infant be under the age of fourteen years, the
appointment of a next friend may be made upon like petition of a relative
or friend of the infant, in which case a notice thereof must first be
given to the person with whom such infant resides. (RSMo 1939 § 862)
Prior revisions: 1929 § 711; 1919 § 1168; 1909 § 1742
1. Before a next friend or guardian ad litem can receive or
receipt for any money or property, personal or real, and before he can
acknowledge satisfaction or discharge of any judgment, he must execute a
bond to such infant; except, that no bond shall be required if the total
value of the property or money, exclusive of expenses and fees approved
by the court, is not in excess of ten thousand dollars and all of the
money or property is to be turned over to the infant or his parent. The
bond must be approved by the court or the clerk thereof and shall be
conditioned that the next friend or guardian ad litem shall account to
the infant for all money or property which has or does come into his
hands, less only those expenses and attorney fees the payment of which
has been approved by order of the court. The bond shall be in an amount
equal to the value of the money or property if the surety is a corporate
bonding, surety or insurance company, and in an amount double the value
of the money or property if the surety is not a corporate bonding, surety
or insurance company, in which event there shall be two sureties. In
either event, the surety or sureties shall be approved by the court or
clerk thereof before the bond can be approved.
2. Failure to execute such approved bond with approved surety or sureties
when required under the provisions of subsection 1 of this section shall,
upon receipt by a next friend or guardian ad litem of any money or
property for or on behalf of such minor, immediately render such next
friend or guardian ad litem personally liable to the minor for a penal
sum in an amount double the value of the money or property and also shall
render absolutely void and of no effect any release, receipt or
acknowledgment of satisfaction or discharge of any judgment which has or
is in the future made or executed by the next friend or guardian ad litem.
3. The next friend's duties or guardian ad litem's duties and his
obligations under the bond shall continue until he is discharged
therefrom by order of the court. (RSMo 1939 § 863, A.L. 1959 H.B. 537,
A.L. 1961 p. 222, A.L. 1977 S.B. 142 & 433, A.L. 1988 S.B. 506)
Prior revisions: 1929 § 712; 1919 § 1169; 1909 § 1743
Such bond shall be delivered to such officer before the
appointment shall be made, and shall be filed in the office of the clerk
of the court in which the suit is to be brought. (RSMo 1939 § 864)
Prior revisions: 1929 § 713; 1919 § 1170; 1909 § 1744
The petition for the appointment of a next friend, the written
consent of the person proposed to be next friend, and the order of
appointment, shall be filed in the office of the clerk of the court where
the suit is proposed to be brought, before any proceedings shall be had
in the cause. (RSMo 1939 § 865)
Prior revisions: 1929 § 714; 1919 § 1171; 1909 § 1745
The guardian, conservator, or next friend of any infant who
commences or prosecutes a suit shall be responsible for the costs
thereof, unless such infant be permitted by the court to sue as a poor
person, as provided by law. (RSMo 1939 § 866, A.L. 1983 S.B. 44 & 45)
Prior revisions: 1929 § 715; 1919 § 1172; 1909 § 1746
The next friend, guardian ad litem or guardian or conservator
shall have authority without an order of court to contract for and employ
an attorney upon a reasonable fee, including one contingent upon the
outcome of such action or claim, and to incur reasonable expenses in the
preparation and prosecution of such action or claim, but any such fee and
expenses shall be subject to the approval of the court, but if approved
by the court shall be payable out of any money or property recovered or
obtained in the prosecution or settlement of such action, claim or any
judgment thereon. (L. 1959 H.B. 537 § 507.181, A.L. 1983 S.B. 44 & 45)
1. The next friend, guardian ad litem or guardian or conservator
shall have the power and authority, subject to the approval of the court,
to waive a jury and submit all issues in such action or proposed
settlement to the court for determination.
2. The next friend, guardian ad litem or guardian or conservator shall
have the power and authority to contract on behalf of the minor for a
settlement of the minor's claim, action or judgment, provided that such
contract and settlement shall not be effective until approved by the
court. The next friend, guardian ad litem and guardian or conservator
shall also have the power and authority to execute and sign a release or
satisfaction and discharge of a judgment which shall be binding upon the
minor, provided the court orders the execution of such release or
satisfaction and discharge of judgment.
3. The court shall have the power and authority to hear evidence on and
either approve or disapprove a proposed contract to settle an action or
claim of a minor, to authorize and order the next friend, guardian ad
litem or guardian or conservator to execute and sign a release or
satisfaction and discharge of judgment, and shall also have the power and
authority to approve a fee contract between the next friend, guardian ad
litem or guardian or conservator and an attorney and to order him to pay
an attorney fee and to pay the expenses which have been reasonably
incurred in connection with the preparation and prosecution of the action
or claim and including the cost of any bonds required herein. (L. 1959
H.B. 537 §§ 507.182, 507.183, A.L. 1983 S.B. 44 & 45)
(1973) Judicial settlement of claim against tort-feasors does not release
contractual liability of insuror to pay medical expenses to minor not a
party to insurance contract. Aetna Casualty and Surety Co. v. Bailey
(A.), 497 S.W.2d 816.
(1979) Statute is to be construed to mean persons who have not attained
age of 18 years. Holoman v. Harris (A.), 585 S.W.2d 530.
(1981) Judgment entered under provisions of statute for the purpose of
effecting a settlement of a minor's cause of action does not bar
subsequent suit against persons who were not parties to the action.
Arthur v. Evangelical Deaconess Society, etc. (A.), 615 S.W.2d 438.
1. At any time during the preparation or prosecution of such
action or claim, before or after judgment or appeal, the minor's duly
appointed conservator may be substituted for the next friend or guardian
ad litem. The substitution may be made by the court or the clerk thereof
upon an ex parte showing of the appointment and qualification of the
conservator. In the event of such substitution, the court shall, upon
payment or transfer of all of the minor's money or property in his hands
to the conservator and filing a receipt for the same with a certified
copy of the conservator's letters attached to it, and acceptance of the
receipt by the court or clerk thereof as authentic, discharge the next
friend or guardian ad litem from all of his obligations and duties as
such.
2. In the event the minor's conservator has been substituted for the next
friend or guardian ad litem and the attorney fees and expenses have not,
at the time of the substitution, been paid, the conservator shall be
bound by the attorney fee contract and shall be obligated to pay the
attorney fees and expenses to the same extent as the next friend or
guardian ad litem would have been obligated to pay them had he not been
discharged, provided the attorney fees and expenses are approved by the
court. (L. 1959 H.B. 537 § 507.185, A.L. 1983 S.B. 44 & 45)
1. If, after paying the attorney fee and the expenses, the next
friend or guardian ad litem has in his hands money or property of the
minor in an amount equal to or less than ten thousand dollars, then the
court may, if in its discretion it finds it to be to the best interests
of the minor to do so, order the next friend or guardian ad litem to pay,
deposit, or deliver all or any part of such money or property in
accordance with one of the alternatives prescribed by subsection 1 of
section 475.330, RSMo. The provisions of chapters 473 and 475, RSMo,
shall apply to any such payment, deposit, or delivery. In the event of
such order and payment, deposit, or delivery, the next friend or guardian
ad litem shall file with the court or the clerk thereof a receipt from
the person to whom the payment, deposit, or delivery was made evidencing
such payment, deposit, or delivery. After such receipt has been filed and
accepted by the court or clerk thereof as authentic, then the court or
clerk thereof may order the next friend or guardian ad litem discharged
and released from all of his duties and obligations and from his bond. In
the event such payment or delivery is to the minor, then the minor's
signature upon the receipt shall be unavoidable, irrevocable and forever
binding upon the minor.
2. If, after paying the attorney fee and the expenses, the next friend or
guardian ad litem has in his hands money or property of the minor in an
amount in excess of ten thousand dollars, then the court shall order the
next friend or guardian ad litem to pay or transfer such money or
property to a duly appointed and qualified conservator of the minor. Upon
such payment or transfer, the next friend or guardian ad litem shall file
with the court or the clerk thereof a receipt from such conservator to
whom such payment or transfer was made, evidencing such payment, with a
certified copy of such conservator's letters attached to such receipt.
After such receipt has been filed and accepted by the court as authentic,
then the court shall order the next friend or guardian ad litem
discharged and released from all of his duties and obligations and from
his bond. (L. 1959 H.B. 537 § 507.187, A.L. 1977 S.B. 142 & 433, A.L.
1983 S.B. 44 & 45, A.L. 1984 S.B. 424, A.L. 1985 S.B. 35, et al.)
After the commencement of a suit against an infant defendant,
and the service of process upon him, the suit shall not be prosecuted any
further until a guardian ad litem for such infant be appointed. (RSMo
1939 § 867, A.L. 1983 S.B. 44 & 45)
Prior revisions: 1929 § 716; 1919 § 1173; 1909 § 1747
The appointment of a guardian ad litem shall be made by the
court in which the suit is pending, or by the judge thereof in vacation,
upon the written request of the infant defendant, if of the age of
fourteen years or more, or, if such infant be under said age, on the
written request of a relative or friend of the infant, and on the written
consent of any competent person proposed as guardian ad litem, and such
request and consent shall be filed in the office of the clerk of the
court before any answer by such infant shall be filed. (RSMo 1939 § 868,
A.L. 1983 S.B. 44 & 45)
Prior revisions: 1929 § 717; 1919 § 1174; 1909 § 1748
If such infant defendant neglects, for one day after the
expiration of the time within which the infant defendant is summoned to
appear to the suit, to procure the appointment of a guardian ad litem to
defend the suit, the court shall appoint some competent person to be
guardian ad litem for such infant in the defense of such suit. (RSMo 1939
§ 869, A.L. 1949 H.B. 2117, A.L. 1983 S.B. 44 & 45)
Prior revisions: 1929 § 718; 1919 § 1175; 1909 § 1749
No person appointed guardian ad litem for an infant, for the
purpose of defending a suit against such infant, shall be liable for the
costs of such suit, unless specially charged by the order of the court
for some personal misconduct in such cause. (RSMo 1939 § 870, A.L. 1983
S.B. 44 & 45)
Prior revisions: 1929 § 719; 1919 § 1176; 1909 § 1750
1. Whenever a city of over one hundred and fifty thousand
inhabitants shall be sued in any court in this state and the cause of
action on account of which said city is sued shall arise from the
wrongful or unauthorized acts or carelessness and negligence of any
person or corporation subject to service in this state, and such wrongful
or unauthorized acts or carelessness and negligence shall also make such
person or corporation liable to an action by the plaintiff on the same
account as such city is sued for, such city may, within fifteen days
after the first day of the next term of court after the service of the
writ of summons, file a motion, in writing, in said case, notifying the
plaintiff therein to make such person or corporation a party defendant in
said suit in accordance with the facts constituting the liability of such
person or corporation, which facts said city shall set forth in said
notice, and shall verify the same by affidavit.
2. The plaintiff in said suit shall then proceed to join such person or
corporation as a party defendant in said suit, in accordance with the
facts set forth in said notice, and such suit shall not be prosecuted
against said city until such person or corporation is made a codefendant
with such city; provided, however, that in case the facts set forth in
said notice do not make such person or corporation named therein liable
to an action on the same account as such city is sued for in such case,
said plaintiff may file a motion to strike out said notice, and if said
motion shall be sustained by the court, then the plaintiff in such case
may proceed against defendant city alone, as if said notice had not been
filed; and provided further, that if the plaintiff shall make such person
or corporation as may be named in said notice a party defendant in said
suit and shall have caused summons to be issued for such person or
corporation, and such person or corporation cannot be served with process
by the officer to whom such writ is directed, then the plaintiff in such
case may proceed against the city alone. (RSMo 1939 § 7687)
Prior revisions: 1929 § 7539; 1919 § 8949; 1909 § 9801
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