Cnty. Court of Callaway Cnty. v. Inhabitants of Round Prairie Twp.

• Decision Date: 31 July 1847
• Citation: 10 Mo. 679
• Parties: COUNTY COURT OF CALLAWAY COUNTY v. INHABITANTS OF ROUND PRAIRIE TOWNSHIP.
• Court: Missouri Supreme Court

10 Mo. 679

COUNTY COURT OF CALLAWAY COUNTY

v.INHABITANTS OF ROUND PRAIRIE TOWNSHIP.

Supreme Court of Missouri.

July Term, 1847.

APPEAL FROM CALLAWAY CIRCUIT COURT.

ANSELL & LEONARD, for Appellant.

SHELEY & JONES, for Appellees, insist, that the answer is not responsive to the petition, but is a labored argument to show, that the Circuit Court had no jurisdiction. The statute regulating the opening and repairing of county roads, is peremptory on the County Court, and deprives the party of the right of appeal. Rev. Statutes, 961. In this case as there was no appeal or writ of error, a mandamus was the proper and appropriate remedy. See 3 Blacks. Com. 110, 111, and 265, and note, 8th section of 5th article Constitution; 9 Mo. R. 118; Boone County v. Todd, 3 Mo. R. 140; 1 Cowen, 31; 2 Cowen, 492; 12 Peters, 524; 5 Mass. R. 437; 10 Pick. 59; 4 Conn. R. new series, 246; 3 N. Jersey, 291.

McBRIDE, J.

At the June term, 1844, a petition signed by several of the inhabitants of Round Prairie township in Callaway county, was presented to the County Court of said county, praying the establishment of a road therein designated. The court appointed commissioners to view and mark out a road in conformity to the prayer of the petitioners, who reported a practicable route; whereupon, at the November term, 1844, of the court, the report was approved, the road established, and an overseer appointed to open the same. The road was not opened by the overseer. At the February term, 1846, a petition was presented to the court, by a number of the citizens, praying the court to vacate the road, because if the said road should be opened the same would be useless and inconvenient, and the repairing of the same, an unreasonable burthen to the inhabitants thereabout. At the May term of the court following, a remonstrance, signed by a number of the citizens, was presented, protesting against the annulling of said road. The court then appointed commissioners to view and report whether the road would be of public utility, &c., who at the next August term, reported the same to be of great utility. Thereupon the court set aside the report and ordered that the said road be vacated, &c.

At the October term, 1846, of the Circuit Court of Callaway county, a number of the citizens of Round Prairie township, who had petitioned for the road, presented a petition to the Circnit Court, praying a mandamus from that court, compelling the County Court to set aside their order vacating the road, and to appoint an overseer to open said road, &c. The petition sets forth all of the actings and doings of the County Court in the premises. A conditional mandamus was awarded against the justices of the County Court, two of whom appeared and...