Clark v. Kilbride

• Decision Date: 10 April 1920
• Docket Number: No. 21080.,21080.
• Citation: 220 S.W. 880,282 Mo. 101
• Parties: CLARK et al. v. KILBRIDE et al.
• Court: Missouri Supreme Court

220 S.W. 880

282 Mo. 101

CLARK et al. v. KILBRIDE et al.

No. 21080.

Supreme Court of Missouri, Division No.

April 10, 1920.

Appeal from Circuit Court, Knox County; Charles D. Stewart, Judge.

Petition by Charles J. Clark and others for establishment of a public road. The appeal of R. E. Kilbride and others, remonstrators, from a judgment of the county court, was dismissed by the circuit court, and they again appeal. Reversed and remanded.

F. H. McCullough, of Edina, for appellants. L. F. Cottey, of Edina, for respondents.

RAGLAND, C.

The respondents are petitioners and the appellants remonstrators in a proceeding begun February 2, 1914, in the county court of Knox county for the establishment of a public road. Final judgment establishing and opening the road was rendered November 7, 1914. On the same day, but after the adjournment of the court, remonstrators filed an affidavit for an appeal. On November 17, 1914, still in vacation of the court, they tendered to the clerk, and the clerk approved, an appeal bond which they thereupon filed. At an adjourned term, held December 23, 1914, the court made an order which, after reciting the filing of the affidavit and appeal bond and the approval of the bond by the clerk in vacation, allowed an appeal to the circuit court, and directed the clerk to make and certify to that court a transcript of the proceedings in the cause. The transcript was duly filed with the clerk of the circuit court of Knox county January 13 1915. On motion of the petitioners the appeal was dismissed by the circuit court on the ground that it was not taken in time. From the judgment of the circuit court, dismissing their appeal, the remonstrators prosecute this appeal.

1. The proceedings had in the county court relative to the appeal to the circuit court, namely, the filing of the affidavit and bond, the approval of the bond by the clerk, and the subsequent order allowing the appeal, are abstracted as record proper here, and the respondents make the point that, as they were not incorporated in a bill of exceptions, they cannot be considered on this appeal. But in this respondents are in error. These proceedings were shown by the transcript and papers returned by the clerk of the county court upon the allowance of the appeal, which upon their filing in the circuit court became, without the aid of a bill of exceptions, the initial part of the record of the cause in that court. Sections 4091, 7577, and 7579, R. S. 1909; Iba v. Railroad, 45 Mo. 469; Corbin v. Laswell, 48 Mo. App. 627.

2. Preliminary to a consideration of whether the appeal from the judgment of the county court establishing and opening a public road was taken in time, it is necessary to first determine what statute or statutes govern such appeals. Section 4091, R. S. 1909, of the article relating to county courts, provides:

"In all cases of appeal from the final determination of any case in a county court, such appeal shall be prosecuted to the appellate court in the same manner as is now provided by law for the regulation of appeals from justices of the peace to circuit courts, and when any case shall be removed into a court of appellate jurisdiction by appeal from a county court, such appellate court shall thereupon be possessed of such cause, and shall proceed to hear and determine the same anew, and in the same manner as if such cause had originated in such appellate court, without regarding any error, defect or informality in the proceedings of the county court."

Section 10440, of the article dealing with the establishment and vacation of public roads, is as follows:

"Appeals to the circuit court shall be allowed either party from the judgment of the county court assessing damages, or for opening, changing or vacating any road, and upon such appeal the circuit court 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 supersedeas of the proceedings of the county court; and provided further, that all appeals shall be taken within ten days from the date of rendition of the judgment appealed from, and the appellant shall, before such appeal is allowed, file with the clerk of the county court his appeal bond, payable to the county and to the appellee, as their interest may appear, in such sum as may be required by the county court or by the clerk thereof in vacation, and conditioned that he or they (the appellants) will fully pay or satisfy any judgment for damages or costs that may be rendered...