Allen v. Welch
| Decision Date | 06 May 1907 |
| Parties | N. N. ALLEN, Appellant, v. JAMES WELCH, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Chariton Circuit Court.--Hon. John P. Butler, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Crawley & West for appellant.
(1) In a proceeding to establish a private road the appeal is governed by sections 1674 and 1788, Revised Statutes 1899 and when the case reaches the circuit court it is tried de novo and without regard to errors committed by the county court. Colville v. Judy, 73 Mo. 651; Bennett v Hall, 184 Mo. 407. (2) The defendant's motion, which he filed in the circuit court, praying the court to dismiss the proceeding on the ground that the record of the county court failed to show that it had acquired jurisdiction over the person of the defendant or the land sought to be condemned, was properly overruled. (3) The case stood for trial de novo in the circuit court, so it could make no possible difference what the finding of the county court was in that regard. Bennett v. Hall, supra. (4) The defendant waived the question by his appearance. See authorities cited under next section. (5) The defendant having appeared generally in the county court, making motions and arguing them and agreeing to a continuance, having appealed from that court to the circuit court, and having appeared generally in the circuit court, waived any question as to whether or not he had been served with notice. Railroad v. Donovan, 149 Mo. 93; Union Depot Co. v. Frederick, 117 Mo 138; Tarkio v. Clark, 186 Mo. 289; Hilton v. St. Louis, 99 Mo. 199. (7) The action of the court in submitting no other question to the jury than the amount of damages was proper. R. S., 1899, sec. 9464; St. Joseph v. Geiwitz, 148 Mo. 216. (8) The instruction offered by the defendant telling the jury that it devolved upon the petitioner to prove all the facts set out in his petition was properly overruled for two reasons. Remmler v. Schenuit, 15 Mo.App. 192; Proctor v. Loomis, 35 Mo.App. 482; Commission Co. v. Hunter, 91 Mo.App. 333. (9) The trial in the circuit court being de novo, that court should have made a finding upon all the issues in the case, and, the petitioner having made proof of facts entitling him to the establishment of the road petitioned for, the court should have made an order establishing the road.
O. P. Ray and J. A. Collet for respondent.
(1) The statute providing for service of notice upon a landowner through whose land a proposed road will pass, in cases of petition for private ways of necessity, makes no provision for other than personal service. In other words, the statute requires notice to be served upon the landowner through whose land the proposed road is to pass. R. S. 1899, sec. 9460. (2) It is a rule of law well settled that where a statute requires notice without prescribing the method of service, personal service of notice is intended. Therefore, notice was not legally served upon James Welch by leaving a copy with his wife at his usual place of abode. Ryan v. Kelly, 9 Mo.App. 396; Hyde v. Goldsby, 25 Mo.App. 29; Conway v. Campbell, 38 Mo.App. 473; Sedalia v. Gallie, 49 Mo.App. 392; Meyer v. Christian, 64 Mo.App. 203; St. Louis v. Goebel, 32 Mo. 295; Wade on Notice (2 ed.), sec. 1340. (3) This being a proceeding in derogation of common law and of common right, nothing is taken by intendment, but every fact necessary as a prerequisite to the jurisdiction of the court must appear of record. Spurlock v. Dornan, 182 Mo. 242; Williams v. Kirby, 169 Mo. 622; Railway v. Young, 96 Mo. 39; Kirksville v. Coleman, 103 Mo.App. 215; Taylor v. Todd, 48 Mo.App. 550. (4) This being a proceeding in rem, every necessary prerequisite to give the county court jurisdiction of the subject-matter must appear of record. Taylor v. Todd, 48 Mo.App. 550; Railway v. Young, 96 Mo. 39; Williams v. Kirby, 169 Mo. 622; Coal Co. v. Adams, 99 Mo.App. 474; 17 American and Eng. Enc. of Law (2 Ed), pp. 1059, 1060, 1061; 23 Am. and Eng. Enc. of Law (2 Ed.) 621; 12 Am. and Eng. Enc. Pl. and Pr., p. 186, 188, 189. (5) Section 1788, Revised Statutes 1899, makes it the duty of the circuit court in all matters coming to that court upon appeal from the county court to hear and determine the same anew. This being true, the learned trial judge committed reversible error in giving the instruction to the jury given on the court's own motion, and in refusing to submit to the jury any issue except the question of the amount of damages to which defendant was entitled. Levee District v. Jamison, 176 Mo. 557; Williams v. Kirby, 169 Mo. 622; Scott County v. Leftwich, 145 Mo. 26; Colville v. Judy, 73 Mo. 651; Bennett v. Hall, 184 Mo. 407.
This is a proceeding begun in the county court of Chariton county for the opening of a private road. The allegations of the petition filed in that court show, in substance, that plaintiff and defendant are adjoining landowners; that plaintiff resides on his land, that it borders on no public road and that no private road connects it with the nearest highway; "that the road or way hereinafter prayed for is one of necessity and indispensable to the petitioner as he has no outlet to market, to church, post office or to school, and that the road prayed for is the nearest, most direct and suitable," and that the land of defendant lies between that of plaintiff and the nearest public road. The most practicable route for a private road over defendant's land connecting the land of plaintiff with the public road is described and the petition closes with the prayer that commissioners be appointed to view the premises, mark out a private road, and assess damages in favor of defendant. A copy of the petition and a written notice of the day on which it would be presented to the county court was served by the sheriff of the county on the wife of defendant at his usual place of abode, but no personal service was had on defendant. On the date fixed for the presentation of the petition, defendant, by his attorneys, appeared specially for the purpose of challenging the jurisdiction of the court on the grounds thus stated in a written motion filed by him: "First, because the court has no jurisdiction of this cause; second, because this defendant has received no legal notice of the contemplated application for the appointment of commissioners; third, because on the whole record the petitioner is not entitled to the relief asked for and has not complied with the requirements of the statutes of this State in such cases made and provided." The motion was overruled and, thereupon, defendant made certain motions orally which were addressed to the merits of the application. These also were overruled and the court made an order in which, after finding that the allegations of the petition were true, commissioners were appointed to view the premises and mark out the road and assess damages in favor of defendant. In due time, the commissioners reported the performance of their duties and in their report assessed the damages of defendant at the sum of seventy-five dollars.
When the matter came on for hearing on this report, defendant again moved to dismiss the proceedings, this time on the ground that the parties had agreed to submit the assessment of damages to arbitrators. This motion was overruled and the cause was continued by agreement of the parties to the succeeding term. At that term, the court entered final judgment for the establishment of the road as a way of necessity and for the assessment of damages in the sum of seventy-five dollars. Defendant then appealed to the circuit court. There, by motion, he renewed his objection to the jurisdiction of the court, but the motion was overruled and the cause was tried before a jury and a verdict was returned assessing defendant's damages at $ 110.66. In the judgment entered, after assessing the damages and costs of the proceeding against plaintiff, the following disposition was made of the cause: "It further appearing to the court that the damages assessed by the jury for which judgment has been rendered arise from the establishment of a private way of necessity desired by the plaintiff over the defendant's land, and that this cause comes here by appeal from the county court, it is by the court ordered that this judgment be certified to the county court of Chariton county for such further action, if any, as may be necessary and proper in this proceeding." Motions for a new trial and in arrest of judgment were filed by each of the parties but all of them were overruled and plaintiff and defendant each appealed.
First we will dispose of the questions raised on the appeal of defendant. It is earnestly contended that the county court did not acquire jurisdiction over the subject-matter of the cause because of the omission of plaintiff to have defendant personally served with a copy of the petition and a written notice of the day on which it would be presented, and that, as the jurisdiction of the circuit court was derivative, none was acquired by that tribunal, since none obtained in the court of original jurisdiction. It must be conceded that if the county court was without jurisdiction over the subject-matter, the successive tribunals could acquire none. This proposition is not disputed by plaintiff and is too well settled to require elaboration or the citation of authorities. Defendant also is right in saying that the service of the notice on a member of his family over the age of fifteen years, at his place of residence, was insufficient to meet the requirements of the statute. Section 9460, Revised Statutes 1899, provides: "It shall be the duty of the petitioner . . to cause a copy of the petition and the notice of the day on which...
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