Fisher v. Davis

• Decision Date: 24 October 1887
• Citation: 27 Mo.App. 321
• Parties: JACOB FISHER ET AL., Respondents, v. J. B. DAVIS, Appellant.
• Court: Kansas Court of Appeals

27 Mo.App. 321

JACOB FISHER ET AL., Respondents, v. J. B. DAVIS, Appellant.

Court of Appeals of Missouri, Kansas City.

October 24, 1887

APPEAL from Howard Circuit Court, HON. GEORGE H. BURCKHARTT, Judge.

Reversed and remanded.

The case and facts are stated in the opinion of the court.

DRAFFEN & WILLIAMS, for the appellant.

I. In attempts to exercise the right of eminent domain, the utmost strictness is required to give validity to the proceedings. The jurisdictional facts must appear upon the record. The record in this case did not show that the petitioners were of the immediate neighborhood; nor that notice of the application had been given as required by the statute. The county court, therefore, had no jurisdiction. Acts 1883, p 158, sects. 5 and 6; Zimmerman v. Snowden, 88 Mo 218; Whitely v. Platte County, 73 Mo. 30; Colville v. Judy, 73 Mo. 657; Jefferson County v. Cowan, 54 Mo. 234; Blize v. Castlio, 8 Mo.App. 290.

II. If the county court had no jurisdiction the circuit court acquired none by the appeal. Its jurisdiction was appellate only. Haggard v. Railroad, 63 Mo. 302; Gist v Loring, 60 Mo. 487.

III. The jurisdictional facts could not be supplied by evidence dehors the record. The testimony offered in the circuit court could not make good the defect in the record. " It was held by the Supreme Court, in Jefferson County v. Cowan (54 Mo. 237), that the county court has no jurisdiction in the premises unless these facts appear in the petition or in the record, and that when they do not appear the petition should be dismissed in the circuit court." Blize v. Castlio, 8 Mo.App. 290.

IV. (1) An amendment could not be made in the circuit court, so as to give jurisdiction, where the county court had none. The attempted amendment conferred no additional authority. See Gist v. Loring, 60 Mo. 487; Haggard v. Railroad, 63 Mo. 302; McQuoid v. Lamb, 19 Mo.App. 153. (2) Section 3060 has no application to appeals from the county court. This was enacted in 1879. The appeal in the case at bar is governed by the laws of 1877. See Rev. Stat., 1879, sect. 1210. There is no provision for amendments in such cases. McQuoid v. Lamb, 19 Mo.App. 153; State v. Russell, 88 Mo. 648. The law governing appeals from the county court is the same now, as when the cases of Whitely v. Platte County (73 Mo. 30), and Colville v. Judy (73 Mo. 650), were decided. So far as appeals from the county court are concerned, the law is now in regard to amendments as declared in Gist v. Loring (60 Mo. 487).

V. Again, the county court had previously caused the damages to be assessed, as to part of the land owners, and on the seventh of August, 1885, established the road and ordered it opened. It had no jurisdictionafter the lapse of that term to re-open the case and proceed to condemn the appellant's land. Its judgment of July, 1886, was coram non judice. Blize v. Castlio, 8 Mo.App. 290; Bloss v. Tacke, 59 Mo. 174. The appellant's land not having been properly condemned the proceedings were an entirety, and should have been dismissed.

VI. The judgment entered by the court below was certainly unwarranted, in that it required the appellant to remove his fences from the line of the road in thirty days. The statute does not authorize such judgment. See Acts of 1883, p. 160, sect. 9.

A. J. HERNDON and T. SHACKLEFORD, for the respondents.

I. The authorities cited by the appellant's counsel are based upon the law as it existed prior to the revision of 1879. Section 1210, Revised Statutes, 1879, provides that appeals from the county court shall be prosecuted in the same manner as appeals from justices' courts; and section 3060 provides how such appeals may be taken and prosecuted.

II. The amendment, in the case at bar, added no new facts, but merely stated that the three persons who originally signed the petition resided in the immediate neighborhood of the proposed road, and that the notices were duly given, and the court found these facts to be true, on the trial of the cause, and in the judgment declared all the facts to be true which gave jurisdiction to open the road.

III. The appellant, being a party to the record is bound by the judgment. Vaughan v. Railroad, 17 Mo.App. 4; King v. Railroad, 79 Mo. 328.

PHILIPS P. J.

This proceeding originated in the county court for the opening of a new road. It was subject to the provisions of the road law enacted in 1883. Laws Mo. 1883, p. 158. The record shows, if not an irregular course of procedure, at least, a most unusual one.

The petition was presented to the county court at the November term, 1884, when the court made an order that the road commissioner proceed to survey and mark out said road, and make report to the court thereof according to law. At the following term, February, 1885, the commissioner made report, representing that H. Besgrove and B. F. Johnson, through whose land the proposed road would run, refused to relinquish the right of way; the court appointed commissioners to assess the damages, and make report. At the following May term the commissioners filed their report, and the court made a provisional order that the road be established when the petitioners paid into court the damages awarded to the non-assenting land owners. At the following August term the court made an order, reciting the payment of the damages, assessed as aforesaid, and ordered the road overseer to notify all persons to remove their fences in the way of the road. The year following, on the nineteenth day of July, 1886, the record shows that J. A. Bryan and James B. Davis, the appellant herein, through whose land the proposed road ran, had not relinquished the right of way.

The court thereupon appointed certain other commissioners to view the premises and assess the damages, and make report. At the August term following the commissioners filed their report, and the said Bryan and Davis failing to make any objection thereto, the court ordered the road opened within thirty days; and Bryan and Davis were ordered to remove their fences from the roadway within that time. Davis appeared and objected to this order, on the ground that the court had no jurisdiction to make the same.

Davis appealed to the circuit court, where he filed a motion to dismiss the proceedings, on the grounds that the county court had no jurisdiction to make the order appealed from; that it did not appear, from the petition or the record of the county court, that the petition for the establishment of the road was signed by at least twelve freeholders of the municipal township or townships through which said road runs, three of whom are of the immediate neighborhood of said proposed road; nor did it appear, from the record of the county court, that the required statutory notice had been given.

Pending this motion, the petitioners were permitted by the circuit court, over the objection of the appellant, to amend the petition, so as to show that at least three of the petitioners were freeholders resident in the township, and resided in the immediate vicinity of the road. On the hearing of the cause, the petitioners made proof, against the objection of appellant, that the signers of the petition were resident freeholders, as required by the statute, and that the requisite statutory notice of the intended application to the county court for the opening of the road was given. The petitioners also read in evidence the report of the road commissioner, and accompanying plat. The motion to dismiss was...