Anderson v. Sutton

¶1 (concurring). — I fully concur in the opinion of my learned brother. - However, there is one thought that I would add. If there be pending a suit for improvements, I see no reason why the trial court may not consolidate the two cases (the ejectment suit and the one for improvements) and try them as one case and therein dispose of all the equities. This, because the two suits would be between the same parties, and go to a single subject-matter. The title to the property .has been finally adjudicated. The possession, with its attendant damages for its detention, and the attendant equities for improvements (if any), are all there is left. Although the statutes contemplate a separate action for improvements (Mann v. Doerr, 222 Mo. l. c. 18) there is no reason why the two actions cannot be consolidated. This suggestion is made because, we take it, that some action for improvements. has been instituted, or will be instituted, before eviction under a judgment in ejectment. After eviction, which usually quickly follows judgment in ejectment, the statutory action for improvements fails. [State ex rel. v. Foard, 251 Mo. l. c. 60, and cases cited therein.] In the instant case the title, as said, has been determined. Judgment for possession must follow, and upon the heels of such judgment follows eviction. We take it that defendant has not, under these circumstances, failed to file fiction -for improvements. If such has been filed, the two cases, should be consolidated, and all matters determined.