BLAIR, Judge.
This was a suit in partition. The original suit was filed March 16, 1949. There was no question made about the insanity of G. W. Mosely at the time of the trial and there was no doubt expressed concerning the regularity of the appointment of Robert S. Cobb, as his guardian and curator. Neither is there any controversy about the defendant Missouri Home Savings and Loan Association having had a lien upon the premises described.
On June 6, 1949, A. A. Kildare and B. T. McGraw filed an intervening petition, alleging an interest with G. W. Mosely and Limuel H. McFields in the real estate described in the petition. Mosely and McFields were alleged, in such intervening petition, to hold said real estate for themselves and intervenors under the name of the Oak Ridge Development Company. Intervenors prayed the court to adjudge that the said Mosely and McFields held such real estate in trust for intervenors and themselves, and prayed for the partition of said real estate in kind, if possible.
On July 13, 1949, defendant McFields filed his answer to the petition of intervenors, denying each and every allegation thereof. The trial court by order, dated November 17, 1949, affirmed such intervention. Defendant McFields, on November 25, 1949, prayed for a rehearing on the order so rendered. This motion for rehearing is not shown to have been disposed of.
Appellant McFields claims that the suit filed March 16, 1949, in which an order sustaining the intervening petition, was entered, had been dismissed. The record did not so show and it was agreed, on the hearing, that the clerk of this Court should write to the clerk of the Circuit Court of Camden County, to ascertain whether or not such an order had been made in that case by the Circuit Court of that county.
On October 3, 1950, our clerk received a letter from the clerk of the Circuit Court of Camden County, which was entitled in that case and reads as follows: "This will advise you that no Order of Dismissal or Order extending time for filing Transcript was made by the Circuit Court of Camden County, in the above captioned case."
Appellant McFields claims that he could dismiss a case at any time, upon payment of costs and that a court order for such dismissal was not required. Section 99, page 384, of Laws of Missouri for 1943, Mo.R.S.A. § 847.99, is as follows: "A plaintiff shall be allowed to dismiss his action without prejudice at any time before the same is finally submitted to the jury, or to the court sitting as a jury, or to the court, and not afterward."
The word "allowed" indicates that the consent of the court for such dismissal should first be obtained, and it is admitted that such consent was not obtained by appellant McFields.
Besides this statute, in the proceeding had on March 6, 1950, appellant McFields did not attempt to show the impropriety of the order of November 17, 1949.
On March 6, 1950, notwithstanding such order of November 17, 1949, the appellant McFields introduced evidence on the right of intervenors to intervene. In this hearing, after some objection, intervenors also participated, through their counsel.
On March 6, 1950, the circuit court made the following entries of record:
"Testimony presented on Motion for Rehearing.
"Leave granted plaintiff to file amended petition within twenty days.
"Motion to dismiss withdrawn by plaintiff."
On November 17, 1949, the trial court had entered an order sustaining the right of intervenors to file their petition. That was the only order ever made in the case.
It was not until March 6, 1950, that appellant McFields attacked the propriety of any order of intervention. He took an appeal to this Court on March 7, 1950, specifying the order of the Court on March 6, 1950, as erroneous.
The situation then is this: On March 6, 1950, without mentioning the order of November 17, 1949, in the same case, appellant McFields attempted to introduce testimony on the right of intervenors to file an intervening petition. Defendant McFields filed his notice of appeal on March 7, 1950, asserting error in the order of March 6, 1950.
We need not discuss whether appellant McFields could appeal from the mere order of November 17, 1949, since the order of that date was not mentioned at all in the notice of appeal. No right to appeal from the order of November 17, 1949, or the claimed order of dismissal, is shown to have been granted to appellant.
The appeal attempted to be taken on March 7, 1950, is therefore dismissed and this case is remanded to the Circuit Court of Camden County, with instructions to that Court to try the case on the pleadings now before it.
It is so ordered.
VANDEVENTER, P. J., and McDOWELL, J., concurs.