Hartzfeld v. Taylor

• Decision Date: 29 May 1907
• Parties: HARTZFELD v. TAYLOR.
• Court: Missouri Supreme Court

105 S.W. 599

207 Mo. 236

HARTZFELD v. TAYLOR.

Supreme Court of Missouri, Division No. 1.

May 29, 1907.

On Rehearing, November 27, 1907.

1. JUDGMENT — PRIVATE ROADS — ESTABLISHMENT — COLLATERAL ATTACK.

A county court, in a proceeding before it to establish a private way of necessity, acts in its judicial capacity and speaks by its record, and where the record shows the facts conferring jurisdiction, and shows that the court acted within its jurisdiction, its judgment cannot be collaterally attacked.

2. APPEAL — FROM COUNTY COURT — TIME OF TAKING.

Under Rev. St. 1899, § 1788 [Ann. St. 1906, p. 1248], providing that appeals from the county court shall be prosecuted in the same manner as appeals from justices of the peace to circuit courts, and section 4060 [page 2208], providing that appeals from justices of the peace must be made within 10 days after the judgment appealed from, the circuit court acquires no jurisdiction in a proceeding to establish a private way of necessity, where the transcript from the county court shows that its judgment was rendered on a designated date, and that the application for the appeal was made and allowed 11 days thereafter, though the affidavit and bond for appeal bear the indorsement of the clerk showing the filing of the same within 10 days, since the clerk's memorandum of filing cannot overthrow the record entry of the court.

Appeal from Circuit Court, Vernon County; H. C. Timmonds, Judge.

Proceedings by William F. Hartzfeld against Russell W. Taylor to establish a private way of necessity. From a judgment of the circuit court establishing the way, defendant appeals. Appeal dismissed.

M. T. January, for appellant. W. H. Hallett and Scott & Bowker, for respondent.

VALLIANT, P. J.

Proceeding begun in the county court of Vernon county to establish what is denominated in the petition as "a private way of necessity" to connect with a public road across the land of the defendant. The petition was in proper form, notice duly served, and after regular proceedings there was a judgment in the county court establishing the road as prayed and assessing the damages, which the petitioner paid to the county treasurer for the use of the defendant. An appeal was taken to the circuit court, where the cause was tried de novo, and again a judgment was rendered establishing the road as prayed. From that judgment the defendant has prosecuted this appeal.

Respondent moves to dismiss this appeal for the reason that the circuit court acquired no jurisdiction on the alleged appeal from judgment of the county court, and therefore this court acquires no jurisdiction through the appeal from the judgment of the circuit court. The transcript of the record of the proceedings in the county court filed in the circuit court shows that the final judgment of the county court was rendered January 18, 1904, and that the application for the appeal was made and was allowed January 29, 1904, which was 11 days after the final judgment. When the cause reached the circuit court the respondent moved the court to dismiss the appeal on the same ground; but the court overruled the motion and proceeded to the trial, with the result above stated. Section 1788, Rev. St. 1899 [Ann. St. 1906, p. 1248], provides: "In all cases of appeal from the final determination of any case in the county court, such 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," etc. And section 4060 [page 2208], relating to appeals from a judgment rendered by a justice of the peace, says: "No appeal shall be allowed in any case unless the following requisites be complied with: First, the appeal must be made within ten days after the judgment was rendered," etc. Appellant has filed what he calls an "additional abstract," in which he makes the statement that the affidavit and bond for appeal bear the indorsement of the clerk over his official signature, "Filed Jan. 28, 1904." But the clerk's...