In re Big Hollow Road

• Decision Date: 20 June 1892
• Citation: 19 S.W. 947,111 Mo. 326
• Parties: In re BIG HOLLOW ROAD. ENGLAND et al. v. BAILEY et al.
• Court: Missouri Supreme Court

19 S.W. 947

111 Mo. 326

In re BIG HOLLOW ROAD ENGLAND et al. v. BAILEY et al.

Supreme Court of Missouri, Division No. 1.

June 20, 1892.

VACATING HIGHWAY — RIGHT OF APPEAL.

Under Laws 1887, p. 245, § 10, providing that, "in all cases of appeals being allowed from the judgment of the county court, assessing damages, or for opening, changing, or vacating any road, the circuit court shall be possessed of the cause, and shall proceed to hear and determine the same anew, * * *" an appeal from a judgment vacating a portion of a public road lies to the circuit court. Aldridge v. Spears, 14 S. W. Rep. 118, 101 Mo. 400, distinguished.

Appeal from St. Louis circuit court; LEROY B. VALLIANT, Judge.

Petition by B. F. England and others for vacating a portion of a road, against which Henry Bailey and others present a remonstrance, granted by the county court. The remonstrants appeal to the St. Louis circuit court. Petition dismissed. From a denial of a motion in arrest, petitioners appeal to the St. Louis court of appeals on ground of want of jurisdiction in St. Louis circuit court. Judgment affirming jurisdiction, but certifying the cause to the supreme court. Affirmed.

Jos. J. Williams, for appellants. Thomas & Horine, for respondents.

SHERWOOD, C. J.

England and others, acting under the provisions of the road law, (Laws 1887, p. 245,) presented their petition for vacating a portion of the Big Hollow road in Plattin township, Jefferson county, Mo. All the necessary steps were regularly taken, and at the November term, 1888, of the county court a remonstrance signed by more than 12 freeholders of the township was presented to that court, resisting the vacation of said portion of the road in question. The hearing of the cause before the county court resulted in the county vacating the portion of the road sought to be vacated, and on appeal the St. Louis circuit court, to which the cause went on change of venue, heard the cause de novo, found the issues for the remonstrants, and dismissed the petition. Thereupon the petitioners filed their motion in arrest, based upon the theory that the circuit court had no jurisdiction to hear and determine the cause. This motion was denied, and, on appeal to the St. Louis court of appeals, that court was of opinion that the circuit court had jurisdiction; but inasmuch as the Kansas City court of appeals was supposed to have taken a different view of the matter in Aldridge v. Spears, 40 Mo. App. 527, to that taken by the St. Louis court of appeals in Cox v. Dake, 34 Mo. App. 80, the cause has been certified to this court. The case of Aldridge v. Spears has also been certified to this court, and is reported in 101...