Drainage Dist. No. 4 v. Wabash R. Co.

• Decision Date: 15 December 1908
• Citation: 116 S.W. 549,216 Mo. 709
• Court: Missouri Supreme Court
• Parties: DRAINAGE DIST. NO. 4 v. WABASH R. CO.<SMALL><SUP>†</SUP></SMALL>

116 S.W. 549

216 Mo. 709

DRAINAGE DIST. NO. 4 v. WABASH R. CO.^†

Supreme Court of Missouri, Division No. 1.

December 15, 1908.

1. APPEAL AND ERROR (§ 1) — NATURE OF REMEDY — NECESSITY OF CONFORMING TO STATUTE.

The right of appeal is statutory, and the party availing himself of the right must conform to the requirements of the enabling statute.

2. DRAINS (§ 82) — PROCEEDINGS FOR ESTABLISHMENT — APPEAL.

Under Rev. St. 1899, § 8292, as amended by Acts 1903, p. 235, and Acts 1905, p. 185 (4 Ann. St. pp. 3922, 3923), providing that, in proceedings to establish a drainage district, excepting parties desiring to appeal shall file a written application, specifying the matters appealed from, an appeal to the circuit court, which did not specify the particular order or judgment appealed from, and which specified as objections to the report of the viewers and the findings of the court that the assessment of benefits was out of proportion to that placed upon residence and agricultural lands, and is excessive, and that the size of the proposed ditch was insufficient to prevent overflows, and that petitioner had protected its line of road by building an embankment, and therefore would derive no benefit from the ditch, should be dismissed for failure to comply with the statutory provision, and the circuit court on such appeal could not decide whether Rev. St. 1899, § 8285 (Ann. St. 1906, p. 3920), authorizing the viewers to assess damages and benefits, was in violation of Const. art. 3 (Ann. St. 1906, p. 172).

3. JURY (§ 34) — RIGHT TO TRIAL BY JURY — INFRINGEMENT OF RIGHT — APPEAL IN DRAINAGE PROCEEDINGS.

Where an appeal from the county court to the circuit court, in proceedings to establish a drainage district, should have been dismissed, appellant is not deprived of its constitutional right of trial by jury by the court discharging the jury and rendering judgment affirming the judgment of the county court.

4. APPEAL AND ERROR (§ 1074) — HARMLESS ERROR — DISMISSING APPEAL.

Where an appeal from the county court to the circuit court should have been dismissed, but the circuit court discharges the jury and affirms the judgment of the county court, such action is harmless error, where the result of such action is practically the same as would have followed the dismissing of the appeal.

Appeal from Circuit Court, Chariton County; John P. Butler, Judge.

In proceedings to establish Drainage District No. 4, and construct ditches, the Wabash Railroad Company filed exceptions to the report of the viewers and the engineer, which were overruled, and the railroad company appealed to the circuit court, where the judgment of the county court was affirmed and the railroad company appeals. Affirmed.

James L. Minnis, James C. Wallace, and Crawley & Rucker, for appellant. J. A. Collet, for respondent.

VALLIANT, P. J.

This is a proceeding under article 4, c. 122, Rev. St. 1899, and the amendments thereto, for the establishment of a drainage district and the construction of drainage ditches. The proceeding was begun by filing a petition in the county court of Chariton county May 2, 1904. On the same date the petitioners gave bond, as required by the statutes, to cover the cost of the proceedings. On the filing of the petition and bond the county court, in conformity to section 8280, Rev. St. 1899 (4 Ann. St. p. 3917), made an order which was duly entered on the record appointing viewers (as they are called in the statute) and a civil engineer, with directions to them to view and survey the route and make report to the court at its next session. It was also at the same time ordered that notice be published, as required by section 8281, Rev. St. 1899 (Ann. St. 1906, p. 3918), which was done. Although no point is made by appellant on the sufficiency of the notice, we deem it proper to note here, lest what we say of the notice might be misleading, that the order of publication was made before the filing of the report of the viewers, and was, in effect, notice to all parties in interest that the petition was pending in the county court, and that the viewers would report on the 1st day of July. That was in conformity to what the statute then required. Afterwards in 1905 the statute was amended, requiring the notice to be published after the viewers had made their report, and the notice then required was that the petition was pending; that viewers had been appointed, and had made their report, descriptive of the route, and the day appointed by the court for the hearing. The viewers and the civil engineer qualified as the statute prescribed, and entered upon their work, which they completed, and filed their report July 1, 1904. The substance of the report was that, having done as they were directed to do, they found the proposed improvement "necessary and practicable, and will be conducive to the public health, convenience or welfare," and the route given was as proposed in the petition, referring also to a map on file in court with the petition. On filing the report the court postponed the further hearing of the matter until July 23d, and on that day again postponed it to the August term. At that term the court approved the report, designated the district as "Drainage District No. 4 of Chariton County," ordered the construction of the work as prayed in the petition, and appointed the same men as viewers and engineers as had been appointed in the preliminary order, as provided in section 8284 (Ann. St. 1906, p. 3919). In that order the court gave a more particular description of the route, following in detail the map on file, which had been made by the engineer. The viewers made their final report to the county court April 13, 1905, in which they assessed the Wabash Railroad Company $1,375 for benefits. On May 6, 1905, that company, the appellant herein, filed its exceptions to the report, on the grounds, first, that the assignment of benefits against it were excessive; second, the size of the proposed ditch was not sufficient; third, because of the frequent interruptions of its traffic it had theretofore suffered by reason of overflows, it had at great expense built a large embankment and trestle, which fully protected it from overflow, and therefore it was not at all benefited by the proposed ditch. The court overruled the exceptions, but on the same day, of its own motion, made an order reducing the assessment of appellant to $825. Appellant then filed an affidavit for appeal to the circuit court, and it was allowed. The county court entered final judgment approving the final report of the viewers as awarded and carrying the scheme into effect. After the cause was lodged in the circuit court it came on for trial September, 1905, whereupon a jury was impaneled to try the issues. The judgment of the court contains a recital that the plaintiff introduced in evidence the record of the county court in relation to the matter, "together with all the original papers and documents pertaining thereto, together with further evidence and thereupon the plaintiff rested its case. Whereupon the defendant made uncertain proffers of testimony to the court and jury, which on objection was by the court excluded, and the court having excluded all the evidence offered by the defendant because not pertinent to be considered on this appeal, and not being within the limitations of the statutes governing appeals, and having no further evidence to offer within the purview of the appeal, the plaintiff moved the court to discharge the jury and affirm the judgment of the county court, which motion is by the court sustained. Wherefore," etc. From that judgment the defendant, the Wabash Company, has appealed to this court. The record shows that there was a bill of exceptions filed, but the bill does not appear in this record, and was intentionally omitted by appellant for the reason, as stated in its brief, "no point is made here as to any matter of exception, since the abstract presents nothing but the record proper."

1. Although the appellant was duly notified of the pendency of this proceeding, yet it took no part in it until after the final report of the viewers, and then it complained only of the benefit assessment against it. The county court overruled the exceptions, but reduced the assessment from $1,375 to $825. Then appellant appealed. A right of appeal is one given by statute, and in order that a party may avail himself of the right conferred, he must conform to the requirements of the enabling statute. The General Assembly might, if it had seen fit to do so, have made the judgment of the county court in such case final, and allowed no appeal, in which event the judgment could be attacked only either...