Howe v. Callaway
| Decision Date | 02 July 1906 |
| Citation | 95 S.W. 974,119 Mo.App. 251 |
| Parties | ROBERT M. HOWE, Respondent, v. JAMES W. CALLAWAY et al., Appellants |
| Court | Kansas Court of Appeals |
Appeal from the Lafayette Circuit Court.--Hon. Samuel Davis, Judge.
AFFIRMED.
Judgment affirmed.
William H. Chiles for appellants.
(1) The action of the court below was based in part upon the opinion that an appeal does not lie from the county court in such cases but that its judgment is conclusive. The rule now held by our appellate courts is that an appeal will lie in all cases specified in section 9419, Revised Statutes 1899, which includes all cases except where the county court refuses to open, change or vacate a road, which is the only case not specified. This must be the law because it is "so nominated," even if the courts should fail to give the entire force to the other statute, which is broader, and gives appellate jurisdiction to the circuit court from "all judgments and orders of the county court not expressly prohibited by law." R. S. 1899, sec. 1774 subdiv. 4; In re Big Hollow Road, 111 Mo. 326; Drainage District v. Jameson, 176 Mo. 564. (2) Another error in the circuit court was in sustaining objections to any evidence on the ground that the objectors had no right to appeal in this case. Under the provisions of the statute concerning the road change provided for in the present case, the St. Louis Court of Appeals has decided that twelve freeholders may remonstrate and appeal. Schroder v. Jabin, 94 Mo.App. 111. And the remonstrance in this case complies with that requirement. This court has however announced the better and more just rule that a less number than twelve may remonstrate, or "any one whose interest may be affected." Self v. Gowin, 80 Mo.App 398. And the remonstrance in this case comes clearly and strongly within that requirement.
John Welborn and John S. Blackwell & Son for respondents.
(1) Appellants cannot base their right of appeal on section 1674, Revised Statutes 1899. Although that section gives the circuit court jurisdiction from the judgments and orders of the county court, probate courts, and justices of the peace in all cases not expressly prohibited by law, it has been decided that the limitation of the right of appeal must be left to the interpretation of the courts, for the statute nowhere prohibits appeals from the county court to the circuit court, in any class of cases. Appeals from the county court to the circuit court will lie "only when in the nature of the case the circuit court can try the matter anew, and give judgment as the county court should have given." Section 9419 provides for appeals in road cases, and further provides that the circuit court shall be possessed of the cause, and shall proceed to hear and determine the same anew. It will thus be seen that the Legislature did not intend that appeals in road cases should depend on or be governed by the general statute, but provided for such appeals in a section of the road law, and unless appellants' right to appeal can be found in this section, they have no such right. Sheridan v. Fleming, 93 Mo. 321; Bean v. County Court, 33 Mo.App. 635; State ex rel. v. County Court, 47 Mo.App. 647; Aldridge v. Spears, 40 Mo.App. 527, 101 Mo. 400. (2) We earnestly insist that appellants cannot base their right to appeal on section 9419, Revised Statutes 1899. This section was intended to, and does give a right of appeal only in proceedings for the establishment of new roads and change of roads on the petition of at least twelve freeholders of the township. Section 9414 provides how applications for the establishment of new roads and change of roads shall be made, and what said applications shall contain. Section 9415 provides the way and manner in which notice of the intended application shall be given. Section 9416 provides for hearing the remonstrance. Section 9417 provides the way and manner in which damages may be assessed, and provides for a trial by jury. Section 9418 provides that upon proceedings had as in these sections, the court shall order the road established and opened. Then, section 9419 provides for the appeal. (3) The case at bar is under section 9447. That section provides that any person wishing to cultivate or enclose land through which any road may run may petition the county court, first giving notice, for permission to turn such road on his own land at his own expense. No provision is made for a remonstrance. No provision is made for assessment of damages. No provision is made for a trial by jury. No provision is made for appeal. This is a separate and independent section, entirely distinct from and forming no part of the scheme for establishing new roads or changing old ones. State ex rel. v. Woodson, 128 Mo. 497; Thomas v. Ins. Co., 89 Mo.App. 12. The county court was acting as the agent of the county and in its administrative capacity. In re Saline Co. Subscription, 45 Mo. 54; Aldridge v. Spears, 40 Mo.App. 527, 101 Mo. 400.
--This proceeding is an application to the county court of Lafayette county to turn a public road where it runs through the petitioner's land to another part of his land. There was a remonstrance of twelve freeholders. The petition was referred to the road commissioner who made his report thereon. Afterwards the county court made an order turning the road as asked and the remonstrants appealed to the circuit court. In the latter court the appeal was dismissed on the ground that no appeal would lie in such case. The remonstrants thereupon brought the case here.
The proceeding is based upon the following statute (section 9447, Revised Statutes 1899):
The sole question presented by counsel is the right of appeal. If the right exists at all it must be founded upon the statute. We decided a case under this statute, brought here on appeal, but the question of a right to appeal was neither presented nor considered. [Self v. Gowin, 80 Mo.App. 398.] The right of appeal was denied to less than twelve remonstrants in Schroeder v. Jabin, 94 Mo.App. 111, 67 S.W. 949, but it was not decided whether twelve would have had the right.
A careful examination of the question has satisfied us that the circuit court took the correct view of the law in deciding that there was no right of appeal from the county court. There are several sound reasons sustaining that view. As before remarked the right of appeal must be based on the statute. Exclusive original power is given to the county court in road matters and formerly the right of appeal, practically, did not exist as such appeal amounted to no more than a certiorari. There was no trial anew in the circuit court and if the county court had followed the forms of law, its decision was final. A statute, however, has been interposed enlarging the right of appeal in certain cases and providing for a trial de novo in the circuit court. So that now the right of appeal is considered not to exist unless it could accomplish some practical purpose by being tried anew in the circuit court, and when no new trial is provided for, no appeal can be taken. [Scott Co. v. Leftwich, 145 Mo. 26, 46 S.W. 963; Sheridan v. Fleming, 93 Mo. 321, 5 S.W. 813; St. Louis Ry. Co. v. St. Louis, 92 Mo. 160, 4 S.W. 664.]
Applying this rule to the present case, we find that proceedings of this nature are based upon a special provision of the road law, which we have set out above. In that provision there is no right of appeal granted, nor is there any provision for any further hearing beyond the county court. The Legislature has provided for appeals in road cases and for trials anew in the circuit court in certain cases. [Section 9419, Revised Statutes 1899, viz., where damages are assessed, or a road is opened, changed or vacated.] But clearly, those specifications of the right of appeal contemplate cases where there may be contesting parties, not cases in which no provision is made for such contests. Thus section 9416 provides for a remonstrance and contest over the establishing of new roads, or changing existing roads, and section 9448 provides for the same thing in the vacation of roads already established. But the statute upon which this proceeding is had, is not to change a road, or to vacate a road, in the sense used in section 9419, providing for appeals, and the other sections providing for contests by remonstrants. The purpose of the statute upon which this proceeding is based is to "turn" a road from one part of a man's land to another and no remonstrance is contemplated and no remonstrants are recognized as contestants, since no provision is made for either. It is plainly a special, separate and independent provision appearing in the road law for the benefit of the individual landowner, who must make the change himself and at his own expense. He is only required to obtain the consent of...
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