ON MOTION FOR REHEARING In their motion for rehearing appellants contend our opinion is in conflict with an opinion of the Supreme Court in Sanders v. Jones, 347 Mo. 255, 147 S.W.2d 424. In that case the defendants had filed a general denial to plaintiff's petition, which was a suit to ascertain, determine and define the title and interest of the plaintiff and defendants in and to certain real estate. However, in that case, the parties agreed upon astatement of facts and submitted the cause to the court on suchagreement, wherein it was stated "the only claim which defendants have, if any, to said real estate is based upon and arises out of said attachment and the levy * * * as hereinbefore set forth." The quoted language related to certain allegations in plaintiff's petition and certain facts agreed to in the stipulation. In distinguishing the case of Sanders v. Jones from Gilchrist v. Bryant, supra, and Rohlf v. Hayes, supra, the court held that the stipulation of facts, which included the above quoted part, "Amounted to an agreement that defendants were asserting a claim by virtue of the attachment"; and stated, "Obviously it did not occur to anyone at the trial that the real issues to be tried were not properly joined. * * * The case was tried throughout on the theory that the issues which the parties sought to litigate — and did litigate — were before the court." The situation is entirely different in the instant case. Here each answer affirmatively alleged that the defendant has no interest, right or title to the property involved, and each defendant failed and refused to appear and take any part in the trial on the second count. Their answers and their conduct can lead to but one conclusion: that they have no title to the real estate involved and no interest in the result of the trial on the second count.
Defendants also argue that our opinion is in conflict with an opinion of the Supreme Court in the case of Love v. White,348 Mo. 640, 154 S.W.2d 759, and Pugh v. St. Louis Police Relief Ass'n., 237 Mo. App. 922, 179 S.W.2d 927. They argue that we are in conflict with the opinion in Love v. White because, (so defendants state), we held that they were "not proper parties to the suit. * * *" We did not and do not so hold.
The alleged conflict with the opinion of the St. Louis Court of Appeals in the Pugh case is that that court held "the right of appeal is favored." We do not consider our opinion in conflict with that principle because such favor does not extend to a party who is not aggrieved by the judgment.
As pointed out in our original opinion, we are not discussing or deciding the question of defendants' right to have appealed from the original judgment, but have limited our discussion and decision *Page 376 to their right of appeal from the order of the court overruling the specific motion under consideration.
Motion for rehearing overruled.
Motion to transfer overruled.
All concur.