Blize v. Castlio

• Decision Date: 03 February 1880
• Citation: 8 Mo.App. 290
• Parties: JOHN BLIZE ET AL., Respondents, v. JOHN C. CASTLIO ET AL., Appellants.
• Court: Missouri Court of Appeals

8 Mo.App. 290

JOHN BLIZE ET AL., Respondents, v. JOHN C. CASTLIO ET AL., Appellants.

Court of Appeals of Missouri, St. Louis.

February 3, 1880

1. Where it does not appear of record that the application for a new road, made under the law of 1877, was made by twelve householders of the township through which the road runs three of whom are of the neighborhood, the petition must, on appeal, be dismissed.

2. After the term has elapsed, nunc pro tunc entries amending the judgment so as to show jurisdictional facts must be based upon some memorandum entry, or paper in the case.

3. In proceedings involving the exercise of the right of eminent domain, the utmost strictness is required to give validity to the proceeding.

APPEAL from the St. Charles Circuit Court.

Reversed and dismissed.

MCDEARMON & GAUSS, for the appellants: In a proceeding to open a public road, it must appear from the petition presented to the County Court that the petition was signed by " at least twelve householders of the municipal township or townships through which said proposed road may run, three of whom were of the immediate neighborhood." -- Shaffner v. St Louis, 31 Mo. 264; Lind v. Clemens, 44 Mo. 540; Schell v. Leland, 45 Mo. 289; Leslie v. St Louis, 47 Mo. 477; Anderson v. St. Louis, 47 Mo. 479; Ellis v. Railroad Co., 51 Mo. 200; Smith v. Haworth, 53 Mo. 88; Jefferson v. Cowan, 54 Mo. 234; Ruggles v. Collier, 43 Mo. 353; Railroad Co. v. Nelson, 62 Mo. 585; Haggard v. Railroad Co., 63 Mo. 302; Queigle v. Railway Co., 63 Mo. 465; The State ex rel. v. St. Louis, 67 Mo. 113; Rogers v. St. Charles, 3 Mo.App. 41; Inhabitants v. Pope, 1 Mass. 85; Laws 1877, sect. 6, p. 395. Where the record of the County Court fails to show a jurisdictional fact, the defect cannot be cured on appeal to the Circuit Court by the introduction of extraneous evidence.-- Cunningham v. Railroad Co., 61 Mo. 33; Rogers v. St. Charles, 3 Mo.App. 41; Young v. Thompson, 14 Ill. 380; Nichols v. Bridgeport, 25 Conn. --; Kellogg v. McLaughlin, 8 Ohio 116. An order nunc pro tunc cannot be made unless the facts necessary to authorize the entry appear in the record. Parol testimony cannot be introduced to supply the deficiency of the record in this regard. Neither is the court justified in making the entry from the mere recollection of the judge.-- Hyde v. Cushing, 10 Mo. 359; The State v. Clark, 18 Mo. 482; Gibson v. Chouteau, 45 Mo. 171; Turner, Exr., etc., v. Christy, 50 Mo. 145; Saxton v. Smith, 50 Mo. 490; Allen v. Sales, 56 Mo. 28; Dunn v. Raley, 58 Mo. 134; Priest v. McMaster, 52 Mo. 60; Fletcher v. Coombs, 58 Mo. 430; Railroad Co. v. Mockbee, 63 Mo. 348; Robertson v. Neal, 60 Mo. 579; The State v. Primm, 61 Mo. 166; Exchange Bank v. Allen, 68 Mo. 474; Summersett v. Summersett, 40 Ala. 596; Pettus v. McClannehan, 52 Ala. 55; Makepeace v. Lukens, 27 Ind. 435; Decastro v. Richardson, 25 Cal. 49. Where the record of the County Court fails to show that a petition to open a public road was signed by " twelve householders of the municipal township or townships through which said road may run, three of whom were of the immediate neighborhood," the defect is not cured by an entry nunc pro tunc, which merely says that it appeared to the court that the petition was signed by a " sufficient number of qualified petitioners." -- Greeley v. St. Louis, 67 Mo. 116; Charles v. Barney, 1 Mo. 537. Rives v. Morton, 9 Mo. 510; Morton v. Reeves, 6 Mo. 45.

H. C. LACKLAND, for the respondents: The nunc pro tunc entries were properly made.-- Jones v. Insurance Co., 55 Mo. 344; 68 Mo. 474; Gibson v. Chouteau, 45 Mo. 175; Fletcher v. Coombs, 58 Mo. 430; Allen v. Sales, 56 Mo. 28; Saxton v. Smith, 50 Mo. 491. The fact that the application was made by the proper number of householders was sufficiently pleaded and sufficiently appears.-- Snoddy v. Pettis County, 45 Mo. 363; Railroad Co. v. Morton, 27 Mo. 317; Kiley v. Forsee, 57 Mo. 390; Young v. St. Louis, 47 Mo. 492.

OPINION

BAKEWELL J.

This was a proceeding under the road law (Acts 1877, p. 393), to open a new road in St. Charles County. The petition was filed May 14, 1877, and on the same day a remonstrance was filed, signed by appellants and many other citizens. The remonstrance was heard on August 15, 1877, and an order then made requiring the road commissioner to view the road. At the next term the commissioner's report was filed, and at the next term John C. Castlio and Fortunatus Castlio, who alone had not relinquished the right of way, appeared and filed objections in writing to the report. The court then appointed a jury of three freeholders to view the premises and assess damages. On March 27, 1878, the day fixed for taking testimony before the jury in the presence of the court, John C. and Fortunatus Castlio filed a motion to dismiss, assigning, amongst many other reasons, that the petition does not show that it was signed by twelve householders of the township through which the road runs, and that three householders of the immediate neighborhood signed the petition. This motion was overruled. The trial of damages then proceeded, and the jury assessed damages to John C. Castlio $173.30 and to Fortunatus $102.12. Thereupon, on March 28, 1878, the petitioners filed the following motion:--

" Now come the petitioners, and move the court to amend its record, made on the fourteenth day of May, 1877, upon the presentation of the petition, so as to conform the same to the facts, and make it show that the court passed upon the question whether at least twelve householders signed said petition, and that three of them were of the immediate vicinity, and ordered such an entry to be made at the time, but the clerk inadvertently omitted to make such entry. Wherefore, petitioners ask that the entry may be made nunc pro tunc."

On the same day the following entry was made:--

" Now, again, come said petitioners and the objectors and remonstrants, and the motion of petitioners to amend the record of this court, made on the fourteenth day of May, 1877, upon the presentation of the petition, so as to conform the same to the facts, and make it show that the court passed upon the question whether at least twelve householders of the said township signed said petition, and that three of them were of the immediate vicinity of the proposed road, coming on to be heard, and the court having seen and heard and considered the same, doth sustain said motion; and it appearing to the court that the following judgment or order was made by this court on the fourteenth day of May, A. D. 1877, and not entered of record, it is therefore ordered that the same be entered nunc pro tunc, to wit: " In the matter of John Blize et al., petitioners for a new county road. On this day a petition was presented and publicly read for a new county road in Dardenne Township, commencing, etc., [[[[[[[[the road is here described] and it being proven to the satisfaction of the court that due legal notice has been given of the intended application to this court for such road, and that said petition is signed by a sufficient number of qualified petitioners, and on said day a remonstrance being also presented and publicly read as to the utility of the same, it is therefore ordered by the court that said petition and remonstrance be filed for further proceedings."

The court then entered judgment establishing the road, and defendants appealed to the Circuit Court, where defendants moved to dismiss, for the reason set forth above, and for other reasons. This motion was overruled, and such proceedings were had that final judgment was entered establishing the road.

The act under which these proceedings were had provides (Acts 1867, p. 395, sect. 6) that the application for the establishment of a new road must be made by petition to the County Court, signed by at least twelve householders of the municipal townships through which the road may run, three of whom must be of the immediate neighborhood. The same provision was in the act of 1872 (p. 139, sect. 8). It was held by the Supreme Court, in Jefferson County v. Cowan, 54 Mo. 237, that the County Court has no jurisdiction in the premises unless these facts appear in the petition or in the record, and that where they do not appear the petition should be dismissed in the Circuit Court. If, as is suggested, this ruling is not in accordance with what is said in Snoddy v. Pettis County (45 Mo. 363), the latter case must be taken, of course, to overrule the former so far as the rulings cannot stand together. The law as now established is, that these facts must appear in the petition or of record, and that, being jurisdictional facts, if they do not appear, it is fatal to the proceedings.

We have only to consider whether they do appear in the present case. They do not appear unless by nunc pro tunc entry. The question is, whether this nunc pro tunc...