dissenting.
I respectfully dissent. I disagree with the majority opinion in a number of respects. Foremost, I believe that the majority opinion fails to identify the real issue that the parties to this appeal have attempted to litigate. In my opinion, the underlying issue in each of the four cases that somehow reached this court as a single appeal1 is the ownership of a particular *926motor vehicle. The majority opinion states that the case presents a single issue, “the right to possession of the certificates [of ownership].” I disagree. The only meaning attributable to a certificate of ownership to a motor vehicle is that it serves as prima facie evidence of ownership of the vehicle to which it applies. See State v. Lippert, 595 S.W.2d 22, 24 (Mo.App.1979). Its proper assignment is the means by which ownership of a vehicle is transferred. Herbert v. Harl, 757 S.W.2d 585, 590 (Mo. banc 1988). The possession of a certificate of ownership is otherwise meaningless. The issue presented, albeit in a somewhat veiled manner, in my opinion, is who owns the automobiles in question. The claim of appellant that it is entitled to negotiate certificates of title in order to sell the motor vehicles and apply the sales proceeds to debts it is owed is derived from Country Auto Sales. Respondents’ respective claims to the vehicles in question are derived from Country Auto Sales.
The certificates of ownership identified Country Auto Sales as the owner of each motor vehicle. Because the certificates had not been assigned by Country Auto Sales, absent the presence of John Charleston and Cheryl Charleston — the persons who did business as Country Auto Sales— as parties to this action, the possession of the certificates are meaningless insofar as resolving disputes between appellant and respondents are concerned. Any attempted resolution in an action in which the Charlestons were not parties would have been subject to relitigation by John Charleston and Cheryl Charleston. As such, there are fatal procedural defects in the judgments entered by the trial court.
In my opinion, the Charlestons are indispensable parties. See Rule 52.04(a). The failure to join them is so fundamental and jurisdictional as to require consideration by this court notwithstanding that the parties to this appeal did not raise that issue. Neal v. Drennan, 640 S.W.2d 132, 136 (Mo. App.1982).
Although I believe that the foregoing should be dispositive of this case, that it requires that the judgments entered in the four “consolidated cases” be reversed (if in fact the appeals in all four cases are otherwise validly before this court — see n. 1, supra), and that the cases be remanded for new trial(s) with directions that the trial court join the indispensable parties in accordance with Rule 52.04(a), there are statements regarding other issues in the principal opinion with which I differ and which require further comment.
In attempting to establish an issue between the parties to this, appeal that was capable of resolve, the principal opinion states, “Missouri courts have invoked equitable principles to resolve competing claims related to motor vehicles where the parties to transactions did not comply with § 301.-210.4, RSMo 1986.” 2 Two cases are cited for that proposition, Van Hooser v. Banks, 816 S.W.2d 25 (Mo.App.1991); and Strebler v. Hampton Metro Bank, 686 S.W.2d 28 (Mo.App.1984). From those cases, the principal opinion apparently concludes that the facts of this case present a justiciable question regarding whether a mandatory injunction may properly issue to compel appellant to deliver certificates of ownership to respondents. I do not agree that the eases cited support the proposition that this case presents an issue that can be determined as between the present parties.
The principal opinion parenthetically summarizes the issues that were determined in Van Hooser as “[the] court declared good faith purchaser to be owner of vehicle; seller estopped to assert lack of compliance with statute.” That summari-zation is accurate; however, the determinations made by the court in Van Hooser applied to factual circumstances in that *927case that I believe were unlike those in this case.
Mr. and Mrs. Van Hooser owned an automobile that they wanted to sell. Both of their names were on the certificate of ownership. They contacted a consignment seller, Plaza Auto Consignment, and sought its assistance in selling the automobile. Plaza Auto Consignment found a buyer for Van Hoosers’ automobile, Mr. Banks. Mr. and Mrs. Van Hooser delivered their automobile to Plaza Consignment after they were told that Mr. Banks had agreed to buy it.
Plaza Auto Consignment requested the Van Hoosers to sign the assignment on the vehicle’s certificate of ownership in exchange for Plaza’s check — the check was not certified or otherwise guaranteed by the financial institution upon which it was drawn. Mr. Van Hooser signed the assignment of the certificate of ownership but Mrs. Van Hooser did not. Plaza Auto Consignment was directed to hold the certificate of ownership until after the check it had delivered to the Van Hoosers was honored. Mrs. Van Hooser was to then sign the assignment on the certificate.
The certificate of ownership was delivered to Mr. Banks without Mrs. Van Hooser’s signature — a forgery of her signature appeared on the document. Plaza’s check to the Van Hoosers was not paid. However, Mr. Banks had obtained a certificate of title from the Department of Revenue by reason of the apparent assignment (by means of the forged signature) to him of the certificate of ownership that had been issued to the Van Hoosers. Mr. Banks obtained a loan from Citizens Bank in order to purchase the automobile. Citizens Bank had taken a security interest in the automobile from Mr. Banks.
The Van Hoosers attempted to replevy the automobile from Mr. Banks and sought a declaratory judgment that they were the owners of it. The court held:
The Van Hoosers acted at their peril when they delivered possession of the vehicle together with the primary indicia of ownership to Plaza Auto. By relinquishing possession of the vehicle and the certificate of title, the Van Hoosers clothed Plaza Auto with the authority to commit the fraud and failed to observe the law or follow it. When an innocent party is the victim of that wrong, then as between the two of them, the one who set the scene should bear the loss. [Citations omitted.] Equity should balance the competing interests and under these facts, should intervene and estop the Van Hoosers from taking advantage of the statute. [Emphasis added.]
816 S.W.2d at 28-29. The court pointed out that “[t]he certificate of title when delivered to Mr. Banks was on its face correct in every respect and neither Mr. Banks nor Citizens Bank was aware or should have had reason to be concerned that anything was wrong with the title.” Id. at 28.
Here, none of the respondents received certificates of title at the time they acquired the respective motor vehicles from Country Auto Sales. They were not innocent parties. Likewise, appellant was not involved in the dealings between the respective respondents. Appellant did not “set the scene” that produced respondents’ losses. Further, in Van Hooser, the Van Hoosers, Mr. Banks and Citizens Bank were parties to the action; therefore, the issue of ownership of the motor vehicle could be determined. In this case, the Charlestons are not parties. The holdings in Van Hooser are not applicable to this case.
In discussing Strebler, the principal opinion parenthetically summarizes its holding as “plaintiff stated a cause of action for a mandatory injunction for the delivery of a motor vehicle certificate of ownership.” I did not glean that to be the holding in Strebler. The only holding that I find stated in Strebler is that one count in an amended petition that the trial court had dismissed for failure to state a cause of action, Count IV, had stated a cause of action for conversion. See Strebler, supra, at l.c. 30. Further, the facts in Strebler differ significantly from those in the present case.
Mr. Strebler attempted to purchase an automobile from J-B Enterprises, Inc. *928Hampton Metro Bank was a lien holder. Hampton Bank had possession of the certificate of ownership. On the same day that Strebler agreed to purchase the car, took possession of it and delivered another vehicle as a trade-in, J-B tendered a payoff draft to Hampton Bank. The bank marked the title (the certificate of ownership) on which its lien was reflected, “Paid and released.” 686 S.W.2d at 29. The draft failed to clear. The draft, together with the title, was returned to the bank.
Mr. Strebler informed the bank that he had the automobile. He attempted to negotiate a direct payoff with the bank. While his negotiations were underway, the bank repossessed the car and obtained a repossession title and sold the automobile to a third party. The court held that Mr. Stre-bler could maintain an action against the bank for conversion. In so holding the court pointed out that J-B had acknowledged Mr. Strebler’s contractual rights to possession of the automobile that the bank had repossessed. Id. at 30. It further stated, “Both J-B and [Mr. Strebler] were attempting to comply with the statute [§ 301.210.43] and the actions and conduct of [the bank], as alleged in the petition, were directed to preventing compliance.” Id. at 30-31.
In Strebler, the seller of the automobile, J-B Enterprises, Inc., was involved in the buyer’s efforts to complete the sale. In this case, Country Auto Sales is, in all respects, a stranger to respondents’ claims. I do not believe that the holdings in Stre-bler are applicable to this case.
The final issue with which I disagree is the principal opinion’s determination that because appellant had not perfected liens on the motor vehicles that respondents had attempted to purchase, it had no right to possess the certificates of ownership to those vehicles. Country Auto Sales owned all of the motor vehicles. Country Auto Sales entered into an agreement with appellant “for servicing titles only,” by which Country Auto Sales authorized appellant to negotiate the certificates of ownership that were delivered to appellant, as Country Auto Sale’s attorney-in-fact; to sell the automobiles “if default should occur;” and, to “apply funds to unpaid balances of accounts which the dealer has with [appellant].” I see nothing illegal or unconscionable about such an agreement regardless of the fact that appellant had not perfected liens on the various automobiles to which it possessed certificates of ownership showing Country Auto Sales as owner. The arrangement afforded appellant some protection against Country Auto Sales disposing of the motor vehicles without repaying loans that appellant made to Country Auto Sales. Since § 301.210.4 provides that the only way that ownership of a vehicle may be transferred is by assignment of a certificate of ownership, appellant, by having possession of certificates of ownership for cars it had financed, could monitor the disposition that Country Auto Sales made of those cars. That protection was not as good as the protection that valid liens would have provided. Nevertheless, it was practical and lawful. I do not believe that the disposition of this case should turn on who was the innocent and injured party; however, if it does, arguably, it is appellant not respondents whose acts were free of fault. Respondents took possession of motor vehicles that they desired to purchase without requiring Country Auto Sales to deliver the properly assigned certificates of ownership to those vehicles as is required by § 301.210.4. Appellant did no act that could be construed to be unlawful.
I believe the trial court erred in directing appellant to deliver the certificates of ownership because the real issue for adjudication was the ownership of the vehicles, an issue that could not be decided because of the absence of the Charlestons (Country Auto Sales) from the proceeding. Additionally, however, even if the Charlestons were not indispensable parties (which I believe them to be), I disagree with the assessment in the principal opinion that the law as established by prior Missouri cases requires this case to be determined by applying “equitable principles.” Furthermore, if the law is as the principal opinion *929pronounces, I believe that under the facts of this case appellant is entitled to prevail.
. The only references to consolidation in the record on appeal are docket entries dated “3-12-92" that appear in docket sheets for each of the four cases. The docket entry in each case is the same. It states, “Parties stipulate that four cases (CV392-81CC, CV392-82CC, CV392-155CC and CV392-80CC) are consolidated for trial.” If the stipulation was perceived to be a motion to consolidate the four cases for trial, there should have been a determination of that motion by the trial court, an "exercise of a sound judicial discretion.” State ex rel. Rosen v. McLaughlin, 318 S.W.2d 181, 184 (Mo. banc 1958); Hammons v. Eisert, 745 S.W.2d 253, 258 (Mo.App.1988). See Rule 66.01(b). “The exercise of a sound judicial discretion is not the indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by law — a discretion bounded by the rules and principles of law, and not arbitrary, capricious or unrestrained." Ro-sen, supra. The four cases are apparently being considered on appeal as if they were consolidated for trial as permitted by Rule 66.01(b), notwithstanding the absence in the record on appeal of an order so directing. Regardless, consolidation does not destroy the separate identity of causes of action. "When actions are consolidated ..., they are not merged but remain separate and distinct actions. Cragin v. Lobbey, 537 S.W.2d 193, 195 (Mo.App.1976). In short, consolidation, ... does not change the rights of the parties or make those who are parties in one, parties in the other. Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496-97, 53 S.Ct. 721, [727-28] 77 L.Ed. [1331] 1467 (1933).” Mo.Civil Procedure, Rule 66.01 (MoBar 1983, 1988). The separate appeals in cases that were consolidated for trial may be consolidated by the appellate court. See Ham-mons v. Eisert, supra, at 255. However, this court did not receive appeals in each of the four cases. One notice of appeal was filed that bears the notation "Consolidated cases — see attached." A sheet of paper attached to the notice of appeal identifies the parties who were plaintiffs in each of the four cases that were filed in the trial court and the respective case numbers from the trial court. It identifies the single defendant in each case, K & E Investments, Inc. Query: are all four cases properly before this court for appellate review?
. § 301.210.4, RSMo 1986, states:
It shall be unlawful for any person to buy or sell in this state any motor vehicle ... registered under the laws of this state, unless, at the time of the delivery thereof, there shall pass between the parties such certificates of ownership with an assignment thereof, as herein provided, and the sale of any motor vehicle ... registered under the laws of this state, without the assignment of such certificate of ownership, shall be fraudulent and void.
. References to statutes are to RSMo 1986.