Cnty. of St. Louis v. Lind

• Decision Date: 31 March 1868
• Citation: 42 Mo. 348
• Parties: THE COUNTY OF ST. LOUIS, Respondent, v. JOHN B. LIND and JAMES M. CLEMENS, JR., Appellants.
• Court: Missouri Supreme Court

42 Mo. 348

THE COUNTY OF ST. LOUIS, Respondent,

v.JOHN B. LIND and JAMES M. CLEMENS, JR., Appellants.

Supreme Court of Missouri.

March Term, 1868.

Appeal from St. Louis Circuit Court.

A. M. Gardner, for appellants.

I. The appeal being regularly and properly taken for the purpose of a trial de dovo in the Circuit Court, appellants were entitled to it. Appeals from the County Court are governed by the same rules as those from justices of the peace, in which the trials in the Circuit Court are de novo. (Gen. Stat. 1865, chap. 136, p. 550, § 2, fourth clause.) There is no express or separate provision in the statutes prescribing how appeals from the County Court shall be taken, or prosecuted when taken. Wherever referred to in the statutes, they are almost invariably joined with appeals from justices of the peace. The same language is applied to both; the same rules as to taxation of costs and affirming the judgment. (Gen. Stat. 1865, chap. 173, pp. 688-9, §§ 14, 16.)

II. The County Court, although made by statute a court of record, has no common law jurisdiction, and a writ of error would not lie to it unless authorized by statute. Neither in practice nor by statute is there any way provided to preserve the testimony in the County Court any more than before a justice of the peace. No declaration of law is made by the court; no exceptions are preserved; no bill of exceptions could be made up or signed. An appeal, therefore, in the County Court, would, in almost every case, be impracticable and useless (especially where, as in this case, there was a trial before a jury, and testimony given), unless a trial de novo could be had. A writ of error would not lie to the County Court in a matter of probate. The case must be brought up in the usual way by appeal, and a trial de novo had in the appellate court. (N. Mo. R.R. Co. v. Green's Adm'r, 34 Mo. 159.) The statute makes no distinction in appeals from the orders or judgments of the County Court, whether made in probate or other matters. Trials de novo have been had on appeals from county courts. (Boggs v. Caldwell County, 28 Mo. 586; Walsh et al. v. Edmonson's Ex'r, 19 Mo. 142; County of Boone v. Corlew, 3 Mo. 12.)

H. A. Clover, for respondent.

FAGG, Judge, delivered the opinion of the court.

This was a proceeding instituted under the provisions of section thirteen of an act entitled “An act about roads in St. Louis county,” approved March 10, 1849. It was commenced in the County Court of St. Louis for the purpose of having a certain quarry, the property of James Clemens, Jr., condemned for the use of the county in repairing a certain road mentioned in the application. A jury was summoned, as the law required, and its action being approved by the County Court, an appeal to the Circuit Court was prosecuted by Clemens.

The only matter for consideration here is the correctness of an instruction given by the latter court and its order dismissing the appeal.

The instruction reads as follows: “The court declares the law to be that, although an appeal may lie to the Circuit Court from a final order of the St. Louis County Court in proceedings had before said court under section 13 of an act about roads in St. Louis county, approved March 10, 1849, yet such appeal cannot authorize this court to try the matter de novo; and when such appeal is taken for the purpose of a de novo trial, and the record of the County Court shows no error, the appeal must be dismissed.”

Upon the authority of the cases heretofore decided by this court, it would seem that the only effect of taking the appeal in this case was to take the record of the County Court up to the appellate court, just as a certiorari would. In the exercise of its appellate...