Forsyth Boulevard v. Forsyth

Decision Date12 March 1895
Citation30 S.W. 188,127 Mo. 417
PartiesFORSYTH BOULEVARD IN ST. LOUIS COUNTY v. FORSYTH.
CourtMissouri Supreme Court

Appeal from circuit court, Franklin county; Rudolph Hirzel, Judge.

Condemnation proceeding in the matter of the establishment of Forsyth Boulevard, county of St. Louis, against William Forsyth. From a judgment for Forsyth, the county of St. Louis appeals. Reversed.

R. Lee Mudd, for appellant. J. P. Kerr, for respondent.

MACFARLANE, J.

This is a proceeding commenced in the county court of St. Louis county for the establishment of a public road, known as "Forsyth Boulevard," through the land of respondent, William Forsyth, and others. Commissioners appointed to assess the damages of the said Forsyth made report on the 4th day of August, 1890, which was the first day of the August term of said court. To this report respondent filed exceptions on the 24th day of said month. After a trial in said county by a jury, and judgment for the damages found, respondent appealed to the circuit court of St. Louis county, and afterwards secured a change of venue to Franklin county. In said court a motion was made to dismiss the appeal for the reason that exceptions to the report of commissioners were not filed within the time prescribed by statute. The motion was overruled. A trial resulted in a verdict and judgment for respondent for $1,000, and the county of St. Louis appealed.

The statute provides that, in case any person through whose land the proposed road runs refuses to relinquish the right of way, commissioners shall be appointed to assess his damages. The commissioners are required to report on or before the first day of the next regular term of the court thereafter. The statute then provides: "Any party in interest may file written exceptions on or before the third day of said term, if the term shall so long continue; if not, then before the end of said term, unless further time be given by the court." Provision is then made for having a trial by a jury of six freeholders for the assessment of damages to the party excepting. Section 7799. If no exceptions are filed as provided, and the court be of opinion that the road be of sufficient public utility to justify the payment of the damages awarded, it shall order the road established and opened. Section 7800. Section 7801 provides that, "in case of appeals being allowed from the judgment of the county court, assessing damages, or for opening * * * any road, the circuit court shall be possessed of the cause, and shall proceed to hear and determine the same anew."

1. Appellant insists that respondent, having failed to file his exceptions to the report of the commissioners on or before the third day of the term, the county court had no jurisdiction to grant a jury trial, and both the judgment rendered upon such trial and the appeal therefrom are consequently void. Upon the state...

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22 cases
  • State ex rel. v. Day et al., 21753.
    • United States
    • Court of Appeal of Missouri (US)
    • March 8, 1932
    ...of the testimony. Chicago, S.F. & C. Ry. Co. v. McGrew, 104 Mo. 282; St. Louis, O.H. & C. Ry. Co. v. Fowler, 113 Mo. 458; In the matter of Forsyth Blvd., 127 Mo. 417; Crow v. Houck's Ry., 212 Mo. 589; Ganey v. Kansas City, 259 Mo. 654; Miller v. Busey, 186 S.W. 983; Kibble v. Ragland, 263 S......
  • City of St. Louis v. Senter Comm. Co., 32895.
    • United States
    • United States State Supreme Court of Missouri
    • June 5, 1935
    ...21, Mo. Const.; Nichols, Em. Domain (2 Ed.), secs. 432, 436, 437; C.M. & St. P. Ry. Co. v. Randolph Town-Site Co., 103 Mo. 451; In re Forsythe Blvd., 127 Mo. 421; Miller v. Railroad Co., 162 Mo. 424; St. Louis, Oak Hill Railroad v. Fowler, 142 Mo. 670; Railroad v. Second St. Imp. Co., 256 M......
  • City of St. Louis v. Senter Com'n Co.
    • United States
    • United States State Supreme Court of Missouri
    • June 5, 1935
    ...Mo. Const.; Nichols, Em. Domain (2 Ed.), secs. 432, 436, 437; C. M. & St. P. Ry. Co. v. Randolph Town-Site Co., 103 Mo. 451; In re Forsythe Blvd., 127 Mo. 421; Miller Railroad Co., 162 Mo. 424; St. Louis, Oak Hill Railroad v. Fowler, 142 Mo. 670; Railroad v. Second St. Imp. Co., 256 Mo. 406......
  • State ex rel. State Highway Com'n v. Day
    • United States
    • Court of Appeal of Missouri (US)
    • March 8, 1932
    ......282; St. Louis, O. H. & C. Ry. Co. v. Fowler, 113 Mo. 458; In the matter of Forsyth. Blvd., 127 Mo. 417; Crow v. Houck's Ry., 212 Mo. 589; Ganey v. Kansas City, 259 Mo. 654; Miller. ......
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