Aldridge v. Spears

Decision Date30 June 1890
Citation14 S.W. 118,101 Mo. 400
PartiesAldridge et al. v. Spears et al., Plaintiffs in Error
CourtMissouri Supreme Court

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. 361. (3) There was no error in admitting parol evidence to explain the call in the description of the route. But, if this was error, it is not preserved by the plaintiffs in error so that this court can pass up on it. No motion for a new trial was filed, and no exceptions are saved which this court can consider under its rules, and this case must be determined simply upon the record as it is presented by the pleadings and the record entries. (4) Jurisdiction was conferred upon the county court by the filing of the petition. Laws of 1887, p. 245. Whether or not the facts stated in the petition are true, and whether or not sufficient facts are stated, or whether or not they are supported by the evidence, the court will decide in the exercise of its jurisdiction. Overton v. Johnson, 17 Mo. 450; Snoddy v. Pettis County, 45 Mo. 363. The jurisdiction of a court cannot be made to depend upon its decision upon the merits of the case brought before it, but upon the right to hear and determine it all. Grignsons' Lessee v. Astor, 2 How. (U. S. Sup. Ct.) 338. (5) There is no longer any question as to the right of the parties aggrieved to appeal from the judgment of the county court granting or refusing to open a highway. R. S. 1889, sec. 6967; Jefferson County v. Cowan, 54 Mo. 237; Anderson v. Pemberton, 89 Mo. 65; State ex rel. v. County Court, 80 Mo. 503; Moore v. Bailey, 8 Mo.App. 158. Foster v. Duncan, 44 Mo. 217, was decided before the adoption of either section 1210 or 6967 of the Revised Statutes. (6) The plaintiffs in error were not entitled to a jury upon the issue upon which they demanded a jury. Const., sec. 20, art. 2.

Black J. Barclay, J., absent.

OPINION

Black, J.

-- Aldridge and others petitioned the county court of Pettis county at its November term, 1886, for the establishment of a new road and the vacation of an old one. Upon consideration of the petition and the remonstrances filed by the objectors, the court found that the opening of a new road, and the change of the old one as prayed for, was not a public necessity, and refused to make an order directing the road commissioner to survey the route of the proposed road and refused to vacate the old one. The petitioners appealed to the circuit court. That court proceeded to hear the case anew on the evidence and found that the proposed road was one of public necessity, and ordered the road commissioner to mark out the same. The objectors appealed to the Kansas City court of appeals, and that court came to the conclusion that an appeal from such an order would not lie from the county to the circuit court. The opinion of the Kansas City court of appeals being in conflict with that of the St. Louis court of appeals in Cox v. Dake, 34 Mo.App. 80, the cause was certified to this court.

Several questions have been discussed at the bar of this court and in the briefs, but in the view we take of the case it will be sufficient to consider the single question, whether the petitioners had any right of appeal from the county to the circuit court.

By the act of March 31, 1883 (Laws of 1883, p. 158), applications for the establishment of roads or the change of roads must be made to the county court by the requisite number of freeholders. It is made the duty of the county court to hear the petition, the remonstrances, if any, and such witnesses as the parties may produce; and, if the court shall be of the opinion that the facts justify it, then an order is to be made requiring the road commissioner to view, survey and mark out such road and report to the next term. He is to take relinquishments of right of way, and, if persons, through whose land the new road or change of road shall run, refuse to relinquish, then the court must appoint commissioners to assess damages. The ninth section goes on to say: If upon the report of the road commissioner, and the report of the commissioners appointed to assess damages, the court shall be satisfied that the proposed road is of sufficient utility to justify the payment of the damages, warrants shall be drawn for the damages and delivered to the persons entitled thereto, or deposited in court for them. Exceptions may be filed to the report awarding damages, and the county court may award a new appraisement of damages by a jury; "but, notwithstanding such exceptions, such road may be established and opened and worked, and any subsequent proceedings shall only affect the amount of compensation or assessment to be allowed as damages."

Section 36 enacts: "In all cases of appeals being allowed from the judgment of the county court assessing damages, or for opening, changing or vacating any road, the circuit court shall be possessed of the cause, and shall proceed to hear and determine the same anew; but no commissioner shall be appointed by the circuit court, nor shall any appeal prior to the determination thereof in the circuit court operate as a su...

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