Colville v. Judy

• Decision Date: 30 April 1881
• Citation: 73 Mo. 651
• Parties: COLVILLE v. JUDY, Appellant.
• Court: Missouri Supreme Court

73 Mo. 651

COLVILLE

v.JUDY, Appellant.

Supreme Court of Missouri.

April Term, 1881.

Appeal from Cass Circuit Court.--HON. NOAH M. GIVAN, Judge.

REVERSED.

This was a proceeding begun in the county court of Cass county, for the opening of a private road. Plaintiff's petition alleged, in substance, that he and defendant were the owners of adjoining tracts of land, that no public road touched his land, and that defendant's land lay between him and a public road known as the Independence and Harrisonville road. It described a route over defendant's land to that road which it alleged to be the most convenient way of access to plaintiff's land from a point upon any public road, and least injurious to defendant's land, and prayed that a private road be opened from plaintiff's land to the public road over that route. Upon a hearing of this petition the court found the facts as therein alleged, and appointed commissioners to view the premises, mark out the road and assess the damages. In due time the commissioners made report of their proceedings, which was approved, and the road ordered opened. From this order defendant appealed more than ten days before the approaching term of the circuit court, but failed to give plaintiff notice of the appeal, and failed to file a transcript of the proceedings of the county court in the circuit court at the return term. On the 21st day of the return term plaintiff entered his appearance, filed a transcript and moved for a dismissal of the appeal. This motion was sustained, and defendant appealed to this court.

W. J. Terrell and Robert Adams, Jr, for appellant.

C. W. Sloan for respondent.

I.

SHERWOOD, C. J.

An appeal in cases of this sort is allowed by law, not by reason, however, of section 50, page 1227, 2 Wagner's Statutes, because the act of which that section forms part, relates to public roads; and because further, that act was repealed by section 43 of the act of 1877, (Sess. Acts of that year, p. 403,) which also relates only to public roads. But an appeal lies in this class of cases because the circuit court has “appellate jurisdiction from the judgments and orders of county courts * * in all cases not expressly prohibited by law.” 1 Wag. Stat., 430, § 2; and appeals are now allowed from the final determination of cases in a county court, which 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 cause is thus removed by appeal, the circuit court is to “proceed to hear and determine the same anew.” 1 Wag. Stat., 442, § 22. This last section was enacted January 24th, 1870, at the same term of this court that the case of Snoddy v. County of Pettis, 45 Mo. 361, was decided, and no doubt to remedy the defect in legislation which that case disclosed. That section, however, has hitherto escaped observation, and was entirely overlooked in McVey v. McVey, 51 Mo. 406, decided two years after that section became a law. But even that case admits that an appeal lies from the county court to the circuit court, “unless prohibited, but that where no provision is made regulating its mode or manner, its only effect is to take the record * * up * * just as a certiorari would.” As already seen, the mode or manner of taking an appeal from the county court to the circuit court has been regulated; and the same provisions of law govern as do in appeals from justices of the peace. No notice of the appeal was given respondent in this case, nor did the...