Thomas v. Craghead

• Decision Date: 03 March 1933
• Docket Number: 30489
• Citation: 58 S.W.2d 281,332 Mo. 211
• Parties: In Re Petition of Ida L. Thomas et al. v. Gus Craghead, Appellant
• Court: Missouri Supreme Court

58 S.W.2d 281

332 Mo. 211

In Re Petition of Ida L. Thomas et al. v. Gus Craghead, Appellant

No. 30489

Supreme Court of Missouri

March 3, 1933

Appeal from Callaway Circuit Court; Hon. H. A. Collier Judge.

Affirmed.

Irwin & Bushman for appellant.

(1) The motion filed by appellant to vacate the judgment is the proper procedure. Cross v. Gould, 131 Mo.App. 602; Downing v. Steel, 43 Mo. 319; Estes v Nell, 163 Mo. 387. (2) The provisions of the law providing for the establishment of such road must be strictly adhered to. Turlow v. Ross, 144 Mo. 240; Spurgeon v. Bartlett, 56 Mo.App. 355; Williams v. Beatty, 139 Mo.App. 167; Anderson v Pemberton, 89 Mo. 65; In re Reynolds, 305 Mo. 5. So that the circuit court was without jurisdiction to change the location of the road after the case was certified to the circuit court from the county court on exceptions filed there. Sec. 10629, R. S. 1919; Williams v. Beatty, 139 Mo.App. 173; Parsons v. Wilcox, 206 Mo.App. 607; Aldridge v. Spears, 101 Mo. 406; Tummons v. Stokes, 274 S.W. 529; State ex rel. Tummons v. Cox, 282 S.W. 695; State ex rel. v. Highway Comm., 286 S.W. 3; Hall v. Flag Road District, 296 S.W. 166; Petet v. McClanahan, 297 Mo. 685.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

This case comes to the writer by reassignment. It originated in the County Court of Callaway County upon the petition of respondents Thomas et al. for the establishment of a public road in that county. The Kansas City Court of Appeals transferred the appeal to this court for the reason that title to real estate is directly involved. [Thomas v Craghead (Mo. App.), 22 S.W.2d 1057.] The question of title was raised by the contention of appellant Craghead that the Circuit Court of Callaway County, to which Craghead and others appealed from the judgment of the county court establishing the road, acted outside of its jurisdiction in establishing a road which did not conform to the road described in the petition filed in the county court or to the road laid out by the county survey or under the order of the county court. When the legality of the proceedings to condemn land for a public road becomes an issue, title to real estate is involved and this court obtains jurisdiction of the appeal. [Munroe v. Crawford, 163 Mo. 178, 63 S.W. 373.]

The appeal before us for decision is from the order of the Callaway Circuit Court overruling appellant's motion, filed September 5, 1928, during the September Term, to set aside and vacate its judgment establishing the road, entered February 27, 1928, at the February Term. The grounds of the motion were that the judgment of the circuit court was entered upon the purported consent, recited in the judgment, of all parties in interest, petitioners and objectors, whereas, appellant Craghead charged in his motion, neither he nor his original counsel in the county court and circuit court proceedings had any knowledge of the agreement for the consent judgment; they did not in fact consent to the judgment and did not have any knowledge of it until long after its entry. The motion further alleged that, by reason of the representations of consent, the court was deceived and was caused to enter an erroneous judgment and appellant Craghead "was deprived of the due process of law to his great injury and damage." Appellant accordingly moved the court "to set aside said judgment and to modify the same insofar as this petitioner is concerned and to reinstate said cause for trial upon the docket of the court, especially with reference, and insofar as the same effects this petitioner, and his lands," etc. Respondents traversed appellant's motion by a pleading which they called a reply and which denied generally the allegations of the motion and also charged that upon its face the motion showed that appellant was not entitled to the relief asked.

I. The circuit court conducted a hearing upon the issues raised by these pleadings, and then overruled appellant's motion. On the question of fact whether appellant Craghead consented to the entry of judgment, we are of opinion that the testimony, fragmentary though it be, and mostly made up of conversations on the streets of Fulton, the county seat of Callaway County, was sufficient to warrant action of the trial court. The road, about one-half mile long, was designed to give a public outlet to certain lands. Among these were the farms of appellant Craghead and respondent Ida L. Thomas. The Commissioners, appointed by the county court, allowed Craghead $ 50 damages. He and W. H. Harris and E. W. Erdman and Earl Smart appealed to the circuit court. At the first trial, had before a jury, in September, 1927, damages in the sum of $ 50, the same amount allowed in the county court, were awarded to Craghead. The circuit court thereupon ordered the road opened and assessed one-third of the costs against Craghead as a losing exceptor. A new trial was granted and thereafter negotiations looking to a settlement were conducted from time to time. Out of these negotiations resulted the judgment of February 27, 1928, purporting to be by consent. The attorneys for the parties to the controversy in the circuit court were Messrs. J. R. Baker, for the petitioners; N. T. Cave, for W. B. Harris, E. W. Erdman and Earl Smart, objectors, and T. A. Faucett for appellant Craghead.

The evidence is undisputed that, in the negotiations leading up to the consent judgment, Harris and Erdman, who owned one farm, contended for greater damages and Smart objected to the course which the road took across his farm. Petitioners adjusted these differences. The damages to Harris and Erdman were increased to a satisfactory amount and the course of the road through Smart's farm was changed by agreement. Smart in turn waived damages, although he had been awarded them in the county court and in the first trial in the circuit court. There was testimony tending to prove that Craghead's principal grievance against the first circuit court judgment was the assessment against him of one-third of the costs. Mr. Baker, attorney for the petitioners, having adjusted the differences with the other objectors, met Mr. Craghead on the streets of Fulton and offered to have all costs assessed against the petitioners, and damages of $ 50 awarded to Craghead. Baker understood Craghead's answer to be an acceptance of this proposition and the consent judgment was drafted accordingly, giving expression to the settlements made with all the objectors. Craghead at the hearing denied that his complaint was against the assessment of costs. He insisted that he wanted and demanded more damages. He also differed with Mr. Baker as to the conversation between them about settlement. But the conflict of testimony was for the decision of the court below.

There was other testimony tending to sustain the fact of Craghead's consent to the judgment. For instance Craghead testified that during the February Term and a few days after the entry of judgment, a neighbor informed him of the judgment by consent. Several witnesses testified that Craghead had knowledge of the pendency of the negotiations for settlement and of the agreement which petitioners made with Craghead's neighbor Smart at the time of compromise. Attorney Faucett, who did not represent...