14 S.W. 118 (Mo. 1890), Aldridge v. Spears

Citation14 S.W. 118, 101 Mo. 400
Opinion JudgeBlack, J.
Party NameAldridge et al. v. Spears et al., Plaintiffs in Error
AttorneyCharles E. Yeater for plaintiffs in error. Jackson & Montgomery for defendants in error.
Judge PanelBlack, J. Barclay, J., absent.
Case DateJune 30, 1890
CourtSupreme Court of Missouri

Page 118

14 S.W. 118 (Mo. 1890)

101 Mo. 400

Aldridge et al.

v.

Spears et al., Plaintiffs in Error

Supreme Court of Missouri

June 30, 1890

Appeal from Pettis Circuit Court. -- Hon. Richard Field, Judge.

Affirmed.

Charles E. Yeater for plaintiffs in error.

(1) The petition, being both for the vacation of an existing public road and the establishment of a new public road, was such a misjoinder that the court acquired no jurisdiction for either purpose. Laws of 1883, pp. 158, 164. (2) The court acquired no jurisdiction because the petition failed to definitely specify the "beginning, course and termination" of the new road, and failed to name at least "two points on the direction of said road," and failed to set forth the width of the road, and the judgment is void on its face for the same defects, except the latter. Laws of 1883, secs. 2, 5, p. 158; Dougherty v. Brown, 91 Mo. 30; Long v. Talley, 91 Mo. 310; Wilson v. Berkstressor, 45 Mo. 285. (3) The court erred in admitting parol evidence to explain and make more definite the description of the new road set forth in the petition. Cases, supra. (4) While it is admitted that the omission of the petition, to state that three of the freeholders were "of the immediate neighborhood," was supplied by proof on trial in the circuit court, and a finding to that effect recited in the judgment of that court; yet, by reason of the omission to recite it in the record of the county court below, the circuit court acquired no jurisdiction. Haggard v. Railroad, 63 Mo. 303; Fisher v. Davis, 27 Mo.App. 327, and cases therein cited; Railroad v. Young, 96 Mo. 39. (5) The county court alone has exclusive jurisdiction to open public roads, and if it refuse the circuit court has no such jurisdiction on appeal. R. S., sec. 6967; Laws of 1887, p. 247, secs. 7, 8, 9, 10; Foster v. Duncan, 44 Mo. 217. (6) The court erred in refusing remonstrants' demand for a jury.

Jackson & Montgomery for defendants in error.

(1) The objection that the petition seeks to vacate an existing public road and also to establish a new road does not go to the jurisdiction. The most that could be complained of is that the petition joins in one count two causes of action, and this objection has been waived by the plaintiffs in error. Bank v. Dillon, 75 Mo. 381; Baker v. Railey, 18 Mo.App. 562; Faddy v. Smith, 23 Mo.App. 87; Brown v. Railroad, 20 Mo.App. 427; Saulsbury v. Alexander, 50 Mo. 142. (2) The description of the proposed road is sufficiently definite and certain for all practical purposes. The same rules apply to road descriptions as to descriptions of lands in deeds. Mills on Eminent Domain, secs. 377, 715; Southerland v. Holmes, 78 Mo. 400; Railroad v. Kellogg, 54 Mo. 337; Butler v. Barr, 18 Mo...

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