Davis v. O'Bryant

• Decision Date: 02 March 1915
• Docket Number: No.17121.,17121.
• Citation: 175 S.W. 931
• Parties: DAVIS et al. v. O'BRYANT et al.
• Court: Missouri Supreme Court

175 S.W. 931

DAVIS et al. v. O'BRYANT et al.

No.17121.

Supreme Court of Missouri, Division No. 1.

March 2, 1915.

Motion for Rehearing Withdrawn April 1, 1915.

Appeal from Circuit Court, Christian County; John T. Moore, Judge.

Petition by B. W. Davis and others for the establishment of a county road, opposed by Joel O'Bryant and others. From a judgment establishing the road, remonstrators appealed to the circuit court, and, from a judgment there establishing the road, they again appeal. Affirmed.

More than 20 days before the 1st day of November, 1909, a notice was posted in compliance with the statute of the intention of the plaintiffs to present a petition for the establishment of a public road, passing through and over certain lands specifically described in the notice—the record title to which lands was at that time in Joel O'Bryant and other persons. On the 1st day of November, a petition in due form was filed for the establishment of said road in the county court of Christian county. On the same day, a remonstrance was filed by Joel O'Bryant and F. W. O'Bryant and others. On the 22d of October, Joel O'Bryant, who was the owner in fee of the property in question at the time of the filing of notice, caused a deed to be made to his son, which he acknowledged before a notary public, who was also the attorney for himself and son in this action. This deed was not delivered to the grantee, but was recorded and returned to said attorney and was in his possession on the day of the trial. Upon a hearing of the case the county court ordered the road to be established. From that decision, Joel O'Bryant appealed to the circuit court and filed a plea to its jurisdiction of the cause, which was overruled, and the circuit court ordered that F. W. O'Bryant should be made a party defendant and directed summons for him, which was duly served, and ordered the county highway engineer to secure a right of way from the said F. W. O'Bryant, and report to the next term of the court. In the circuit court Joel O'Bryant, and his son, F. W. O'Bryant (the latter appearing for that purpose only), filed written motions asking the dismissal of the petition on the ground, among others, that the said F. W. O'Bryant had become the owner in fee of the lands at the date of the filing of petition by a recorded deed, and that no jurisdiction of his person had been acquired, wherefore the judgment of the county court touching the condemnation of his land was void. These motions were overruled. Upon the trial of the cause in the circuit court a decree establishing the public road and ordering it to be opened was entered, which also recited the following facts:

"The court doth further find that the remonstrance signed by Joel O'Bryant was signed by 12 freeholders residing in the said Lincoln and Logan townships, 3 of whom reside in the immediate neighborhood of the proposed road, and it now appearing to the court that Joel O'Bryant has heretofore been notified, and refused to sign his right of way, and that from the report, of the county highway engineer, E. H. Douglas, F. W. O'Bryant, after being served with the notice and process as ordered by the judge of this court, refuses to sign his right of way, but both F. W. O'Bryant and Joel O'Byant claim damages, and the court after hearing read the petition and report of county highway engineer, together with the evidence adduced it said cause, doth find that said road is of great public utility and practicability, and that all the right of way had been granted and relinquished except the above-named defendants, Joel O'Bryant and F. W. O'Bryant, who claim damages, aid the court doth find that the defendants, Joel O'Bryant and F. W. O'Bryant, are damaged in the sum of $200. It is therefore ordered and adjudged by the court that the defendants, Joel O'Bryant and F. W. O'Bryant, have and recover of and from the petitioners herein the sum of $200, for their damages, together with their costs herein, laid out and expended, for which execution may issue."

G. A. Watson and F. T. Stockard, both of Springfield,...