Fitzmaurice v. Turney

• Decision Date: 25 November 1908
• Citation: 214 Mo. 610,114 S.W. 504
• Parties: FITZMAURICE v. TURNEY et al.
• Court: Missouri Supreme Court

114 S.W. 504

214 Mo. 610

FITZMAURICE v. TURNEY et al.

Supreme Court of Missouri, Division No. 1.

November 25, 1908.

1. PRIVATE ROADS (§ 2)—ESTABLISHMENT— SUFFICIENCY OF PETITION.

An averment, in a petition to establish a private way of necessity, that petitioner's father had reserved a strip for use as a roadway by petitioner and other heirs, did not show that the way sought was not a way of necessity, where such reserved road was not available to reach the public road, unless extended west to petitioner's land and east through defendant's land to the public road.

2. EVIDENCE (§ 165)—BEST EVIDENCE—CONTENTS OF DEEDS.

The contents of a deed, neither lost nor out of reach, cannot be proven by oral evidence.

3. PRIVATE ROADS (§ 2)—ESTABLISHMENT— NOTICE—PUBLICATION—NECESSITY.

Under Rev. St. 1899, § 9460 (Ann. St. 1906, p. 4345), providing that, in proceedings to establish a private way, notice shall be served on the owner 10 days before filing the petition, but, if the owner resides out of the county, notice shall be given by publication, though one of the owners, a railroad, was a foreign corporation, its road, depot, and place of business, with an agent in charge, being within the county, notice by publication was unnecessary, and service upon its agent was sufficient, as the road was a resident of the county.

4. APPEAL AND ERROR (§ 671)—REVIEW— SCOPE OF INQUIRY—DEPENDENT ON EVIDENCE.

Whether or not plaintiff was precluded from maintaining proceedings to establish a private way because of former proceedings in the county court to establish the same way, which were dismissed by plaintiff because the damages awarded against him were excessive, cannot be determined where the record contains no evidence of such former proceedings.

5. APPEAL AND ERROR (§ 532)—RECORD— SCOPE AND CONTENTS—REVIEW OF DECISION OF INTERMEDIATE COURT.

An appeal from a final judgment of the county court only brings up the record proper, the trial in the circuit court being de novo, and no bill of exceptions being possible in the county court, and former proceedings in the county court to establish a private way could only be made a part of the record on appeal, in a subsequent proceeding, from the judgment of the circuit court on appeal from the county court, by being offered in evidence in the circuit court and embodied in the bill of exceptions.

6. PRIVATE ROADS (§ 2)—ESTABLISHMENT— JUDGMENT—TIME FOR ENTRY.

Rev. St. 1899, § 9462 (Ann. St. 1906, p. 4345), provides that in proceedings to establish a private road, when the report of the commissioners is made and no objections are taken thereto, the county court shall order the road established and enter judgment for the owners for the damages assessed, which petitioners shall pay to the county treasurer. Held, that the court need not wait until the damages assessed have been actually paid by petitioner to the county treasurer before rendering judgment establishing the way, but could properly enter judgment awarding the damages assessed and adjudging the road established before such payment, though the part of the judgment establishing the road could not be enforced until the damages were in fact paid.

7. PRIVATE ROADS (§ 2)—JUDGMENT—FAILURE TO DESCRIBE ROAD—EFFECT.

Though the judgment in proceedings to establish a private way should have described the right of way established by it, its failure to do so did not invalidate the judgment, where it referred to the description in the petition and report of the commissioners, both of which were part of the record.

8. JUDGMENT (§ 326)—CORRECTION—OMISSIONS—CORRECTION NUNC PRO TUNC.

Where the judgment, in proceedings to establish a private way, did not describe the road, but merely referred to the petition and commissioner's report for the description, on motion of either party it would be best for the circuit court to supply the description by an entry nunc pro tunc, the papers referred to being loose papers and liable to be lost.

9. PRIVATE ROADS (§ 2)—JURISDICTION—ON APPEAL TO CIRCUIT COURT.

In proceedings against several defendants to establish a private way, that a part of defendants did not appeal from the judgment of the county court would not prevent the circuit court from having jurisdiction of the appeal.

10. APPEAL AND ERROR (§ 877)—HARMLESS ERROR—NOT AFFECTING APPELLANT.

In proceedings to establish a private way, whether damages had been paid to defendants not appealing was immaterial to appellant, and he could not urge that objection to deprive the circuit court of jurisdiction on appeal.

11. PRIVATE ROADS (§ 2)—ESTABLISHMENT— SUFFICIENCY OF EVIDENCE—EXISTENCE OF WAY.

In proceedings to establish a private way of necessity, the evidence held not to show that plaintiff already had a way to the public road, but to show the way prayed for was of necessity and not convenience.

Appeal from Circuit Court, Holt County; Wm. C. Ellison, Judge.

Proceedings to establish a private road by Timothy Fitzmaurice against John Turney and others. From a judgment of the circuit court, on appeal from the county court, establishing the road, defendant Turney appealed. Affirmed.

T. C. Dungan and John W. Stokes, for appellant. G. W. Murphy and C. F. Booker, for respondent.

VALLIANT, P. J.

This suit was begun in the county court of Holt county to establish a private road across certain lands in that county belonging respectively to the three defendants John Turney, John Fitzmaurice, and the Chicago, Burlington & Quincy Railroad Company The cause was carried by appeal to the circuit court of that county, where final judgment was rendered in favor of the petitioner and against the three defendants, from which judgment one of the defendants, John Turney, alone has appealed. There is no question raised as to the amount of the damages awarded, but the judgment establishing the private road is assailed on several grounds.

Section 9460, Rev. St. 1899 (Ann. St. 1906, p. 4345), provides that a petitioner in such case must, at least 10 days before the petition is presented to the county court, cause a copy of the petition to be served on the defendants and a notice of the day on which the petition is to be presented to the county court. The record shows that the petitioner did cause a copy of the petition, and notice that it would be presented to the county court on December 6, 1901, to be served on each of the defendants John Turney and John Fitzmaurice September 26, 1904, and on November 26, 1904, one Vine Hovey, the agent and officer of the Chicago, Burlington & Quincy Railroad Company in charge of its depot and place of business in Forest City, in Holt county, the president or other officer not found in that county, the railroad company being a corporation organized under the laws of another state and doing business in this state.

The petition was presented to the county court December 6, 1904, being a day of the November term of that court. It stated that the plaintiff was the owner of 213 2/3 acres of land, describing it, in Holt county; that no public road passed through or touched it, and that there was no established roadway connecting it with any public road, which fact greatly depreciated its value and impaired its usefulness; that in order to render the land of value and use, for farming or other purposes, it was necessary to establish the private road asked for in the petition; that the road sought to be established was a private way of necessity, and would connect the petitioner's land with a certain public road in the county at a convenient point. Then the petition sets out by metes and bounds the proposed road 20 feet wide in a straight line across the land of defendant John Fitzmaurice, across the railroad right of way and across the land of defendant John Turney, the appellant. The petition also states: "That there is a strip one rod wide across the north side of the said east half of the aforementioned tract belonging to John Fitzmaurice which has been reserved by the grantors of said lands (Patrick Fitzmaurice and wife) to John Fitzmaurice, which reservation is for roadway for use of this petitioner and others." The prayer of the petitioners was for the appointment of three disinterested commissions "to view the premises and mark out a roadway as herein prayed as a private way of necessity, assessing, as the law provides, to the owners of the land through which the said proposed roadway run, and in duty bound," etc.

On the presentation of the petition to the county court, December 6, 1904, defendants John Fitzmaurice and John Turney appeared by counsel and filed a motion to dismiss the petition for six reasons specified, viz.: First The court had no jurisdiction of the matter. Second. The petition was defective, and conferred no jurisdiction. Third. The notice served on the respective landowners was not as required by law. Fourth. The railroad company was a foreign corporation, a nonresident, and could be served only by four weeks' publication. Fifth. That at the preceding August term of the court the plaintiff had presented a similar petition for the same purpose, in pursuance of which commissioners had been appointed, who viewed the premises and filed their report to the November term, assessing damages, and that upon the coming in of the report the plaintiff appeared and dismissed this suit because he was not willing to pay the damages awarded by the commissioners, and after dismissing that suit filed this petition, which is substantially the same as the former, for the purpose of harassing defendants. Sixth. That plaintiff is trifling with the court in dismissing and re-entering the same suit.

The appellant's abstract says: "On the same day the court took up said motion, heard argument of counsel and overruled the same, and heard evidence as to the legality of the proceedings, sufficiency of the petition and notice, as well as argument of counsel, and took the same under advisement until December 7, 1904." Then on...