On motion for rehearing.
Philips, P. J.The motion for rehearing herein is based on the assumption that the decision is in conflict with section 3519, Revised Statutes. We will accept the contention of counsel that the petition stated a good cause of action in favor of the attaching creditors. That being the case, even conceding that section 3519, Revised Statutes, applies to a proceeding under section 448, Revised Statutes, the petition is admitted to aver that the several levies were made on the same property. This was essential to give a cause of action. • The answer tendered the general issue, and, in legal effect, is the same as if it had distinctly averred that the levies were not made on the same property. That was a fact at issue under the denial essential to be proved to give the plain*169tiffs the relief sought. It was not only not proved by plaintiffs, but was disproved by their own evidence. There can be no recovery where there is a failure of proof of a material averment. Groll v. Tower, 85 Mo. 249.
In Leisse v. Railroad (2 Mo. App. 105), affirmed by the Supreme Court (72 Mo. 562), two joint tenants sued the railroad company for damages, consequent upon the abandonment of condemnation proceedings taken against the joint property. In the petition, and at the trial, the plaintiffs sought to recover, as damage, liabilities incurred by them, under separate retainers of counsel, in defending the condemnation proceedings, and for their several loss of time in attending to the business of that defence.
There was, in fact, neither demurrer nor answer to this petition. There was a general demurrer, on the ground that the petition did not state a cause of action. This was not sufficient, however, to raise the question of misjoinder. Bliss Plead. 411; Allnut v. Leper, 48 Mo. 321; Greensburgh v. Sidener, 40 Ind. 424; Rev. Stat., sect. 3516. Yet the court held, in that case, that the evidence showing the fact of separate causes of action defeated a joint recovery. Doan v. Holly, 25 Mo. 357.
We fully considered this question, in deciding the case, before the opinion was prepared. Our conclusion was that section 448, Revised Statutes, under which the plaintiffs proceeded, was sui generis, in authorizing separate attaching creditors to maintain a joint bill in equity. The identity of the respective levies on the same property is in the nature of a jurisdictional fact. It is that which gives the several parties a standing in court, and the right of the pourt to grant the injunction. So, when the fact was developed, at the trial, by the plaintiffs’ evidence, that the levies were not made on the same property, the petition, in a material matter, was not proved, and, therefore, the plaintiffs must go out of *170court. On mature consideration, we are satisfied that the ruling was correct.
The other judges concurring,the motion for rehearing is denied.