Whether the bank is characterized as either a necessary party or indispensable party, failure to join the bank in this litigation is so fundamental and jurisdictional as to require its consideration sua sponte whether raised by the parties on appeal or not. Steiner v. Vatterott, 973 S.W.2d 191, 194 (Mo.App. 1998); Spellerberg v. Huhn, 672 S.W.2d 728, 729 (Mo.App. 1984); Shepherd v. Department of Revenue, 377 S.W.2d 525, 528 (Mo.App. 1964), overruled on other grounds, Jackson v. Director of Revenue, State of Mo., 893 S.W.2d 831, 834 (Mo.banc 1995). This is true even though such party is present during the trial and testifies adversely to its own interests or disclaims any interest in the subject matter of the suit.
For reasons which follow, this court holds that under Rule 87.04, which is a rescript of § 527.110, the City of Springfield was an indispensable party to the circuit court proceeding. The presence of an indispensable party is a jurisdictional requirement, Lake Lotawana Ass'n, Inc. v. City of Lake Lotawana, 723 S.W.2d 585, 588 (Mo.App. 1987); Spellerberg v. Huhn, 672 S.W.2d 728, 729[1] (Mo.App. 1984); Vanderson v. Vanderson, 668 S.W.2d 167, 169[1] (Mo.App. 1984); Neal v. Drennan, 640 S.W.2d 132, 136[8] (Mo.App. 1982). Although none of the parties to this appeal has raised the matter of the nonjoinder of the City as a party, this court must raise it on its own motion.
The failure to join an indispensable party to litigation is so fundamental and jurisdictional as to require its consideration by this court whether raised by the parties or not." Spellerberg v. Huhn, 672 S.W.2d 728, 729 (Mo.App.E.D. 1984) (citing Riley v. Riley, 603 S.W.2d 32 (Mo.App.W.D. 1980)). For the aforementioned reasons, plaintiff Estate of Jason Abney, Sr. is not a proper party to the instant action.
However, in Missouri the failure to join an indispensable party is "so fundamental and jurisdictional as to require its consideration by this court whether raised by the parties or not." Spellerberg v, Huhn, 672 S.W.2d 728, 729 (Mo.App.E.D. 1984). Therefore we must examine whether Topsoil was an indispensable party to the litigation so as to deprive the trial court of jurisdiction.
Defendants' statements are apt with respect to actions for quiet title in which the ownership of real estate is in dispute. See, e.g., Buford v. Lucy, 328 S.W.2d 14, 19 (Mo. 1959); Moran v. Flach, 752 S.W.2d 956, 958 (Mo.App. 1988); Spellerberg v. Huhn, 672 S.W.2d 728, 729 (Mo.App. 1984). The problem with defendants' analysis is not the correctness of the statement of law on which they rely, but the characterization of the earlier action for cancellation or rescission of a deed as a dispute concerning ownership of property.
See Rule 52.04(a)(2)(i) and (ii). Failure to join an indispensable party "is so fundamental and jurisdictional as to require its consideration by this court whether raised by the parties or not." Spellerburg v. Huhn, 672 S.W.2d 728, 729[1] (Mo.App. 1984). Prewitt, P.J. and Rahmeyer, C.J., concur.
They cite several cases for the proposition that when the controversy involves interest in or title to real estate, all parties with an interest in the real estate are indispensable parties. Heitz v. Kunkel , 879 S.W.2d 770, 771-72 (Mo.App.S.D. 1994); Lake Lotawana Ass'n, Inc. v. City of Lake Lotawana , 723 S.W.2d 585, 588 (Mo.App.W.D. 1987);Spellerberg v. Huhn , 672 S.W.2d 728, 729 (Mo.App.E.D. 1984). They claim each of the referenced entities have a legal interest in the property that is adversely affected by the trial court's declaration of Williams Pipeline's 100-foot easement.
" In re Estate of Pilla, 735 S.W.2d 103, 105 (Mo. App. E.D. 1987). "The failure to join an indispensable party to litigation is so fundamental and jurisdictional as to require its consideration by this court whether raised by the parties or not." Spellerberg v. Huhn, 672 S.W.2d 728, 729 (Mo. App. E.D. 1984) (citing Riley v. Riley, 603 S.W.2d 32,35 (Mo. App. W.D. 1980). "[F]ailure to join an indispensable party is a jurisdictional failure which may be raised at any stage of the proceedings, even on appeal." Matter of Bloemker, 766 S.W.2d 687,689 (Mo. App. E.D. 1989) (citing In re Estate of Pilla, 735 S.W.2d at 105).
Moreover, if we were to adopt the Heitzes' position, Sharon would later be able to relitigate the question of the existence of the Heitzes' easement over Lot 8. See Spellerberg v. Huhn, 672 S.W.2d 728, 729 (Mo.App. 1984). This "would defeat the very purpose of the joinder rule seeking to avoid the unnecessary relitigation of issues."
This court holds that Marie Hillis was required, by Rule 87.04, to be a party to the instant proceeding and that the judgment, rendered in her absence, is a nullity. Although this court has found no Missouri case "on all fours" with this case, the following cases support this holding: Commonwealth Ins. Agency, Inc. v. Arnold, supra; St. Paul Fire Marine v. Med. Protective Co., 675 S.W.2d 665 (Mo.App. 1984); Hartford Ins. Co. v. Federal Ins. Co., 682 S.W.2d 871 (Mo.App. 1984); Spellerberg v. Huhn, 672 S.W.2d 728 (Mo.App. 1984); State ex rel. Emcasco Ins. Co. v. Rush, supra. In Commonwealth Ins. Agency, Inc. v. Arnold, a declaratory judgment action the insured sued its insurer and sought a declaration of the insurer's liability on the policy as it related to a claim of Golub Corporation against plaintiff.