In re Bledsoe Hill

• Decision Date: 29 June 1909
• Citation: 120 S.W. 1184,222 Mo. 604
• Parties: In re BLEDSOE HILL. BUCHANAN COUNTY v. BLEDSOE.
• Court: Missouri Supreme Court

120 S.W. 1184

222 Mo. 604

In re BLEDSOE HILL.

BUCHANAN COUNTY v. BLEDSOE.

Supreme Court of Missouri, Division No. 2.

June 29, 1909.

EMINENT DOMAIN (§ 257)—IMPROVEMENTS— ASSESSMENT OF DAMAGES—APPEAL—TIME—"PERFECTED."

Act March 26, 1903 (Laws 1903, p. 150, § 9 [Ann. St. 1906, § 9548-9]), provides that any persons aggrieved by judgment assessing damages for the grading of a highway may appeal by filing an affidavit as required in civil cases, but that the appeal shall be "perfected" within 30 days from the rendition of judgment on the verdict or report. Held, that an appeal was not "perfected" by the filing of appellant's affidavit for appeal and the granting thereof by the trial court, and hence, where no bill of exceptions was filed within the 30 days specified, the Supreme Court has no jurisdiction to consider the appeal.

Appeal from Circuit Court, Buchanan County; Kendall B. Randolph, Special Judge.

Proceeding by Buchanan County for the grading of Bledsoe Hill, a public highway. From a judgment confirming a report of commissioners and assessing damages in favor of Henry Bledsoe, he appeals. Dismissed.

See, also, 200 Mo. 630, 98 S. W. 631.

James W. Boyd, for appellant. L. H. Moss and Duncan & Utz, for respondent.

GANTT, P. J.

This is an appeal from the circuit court of Buchanan county, assessing damages to the appellant, Henry Bledsoe, in the sum of $500, for injury to his land abutting and adjoining the public road, which was ordered graded by the county court of said county. The proceeding is bottomed upon the act of the General Assembly of Missouri approved March 26, 1903 (Laws Mo. 1903, p. 148 [Ann. St. 1906, § 9548-1]) entitled "An act to empower county courts to grade public roads and to provide a method of paying damages caused by said grading." This proceeding was commenced February 26, 1907, by the county court of said county making an order for the grading of the public road, along the lands of Henry Bledsoe, along the east line of sections 30 and 31 in township 55, range 35, in Buchanan county, according to profile and specifications to be filed by the county surveyor of said county. A copy of all the steps taken in the county court was filed in the circuit court May 17, 1907, and thereupon the circuit court made its order of record, notifying all persons whom it might concern that the 20th day of June, 1907, had been fixed by said court as the day and time for the ascertainment of damages, if any, to arise from the grading of the said public road, and that the same would be heard in the courtroom of division No. 1 of said court in the courthouse in St. Joseph, and at that time commissioners would be appointed to ascertain and to report said damages; and it was further ordered that publication of said order be made for four consecutive weeks in the Catholic Tribune, a newspaper of general circulation in said county. On June 20, 1907, proof of the publication of said order was made to the circuit court, and Henry Bledsoe, the appellant herein, appeared and filed his claim for damages in the sum of $2,000. A change of venue was then taken from Judge Mossman to Judge Ramey's division; but, Judge Ramey being sick at that time, Hon. W. D. Rusk was elected special judge to hold said court; but, when this cause was reached, Judge Rusk, having been of counsel, was disqualified, and thereupon, by agreement of counsel, Hon. K. B. Randolph, a member of the bar of said court, was selected as special judge to try said cause, and he presided therein until its conclusion in the circuit court, without any objection or exception having been made to his action as judge therein. On December 21, 1907, N. L. Byrne, David A. Turner, and F. M. Atkinson, three disinterested freeholders of said county, were appointed commissioners, and on January 7, 1908, were duly sworn to ascertain and report the actual damages, under instructions of the court. In due time two of the said commissioners made their report, Mr. Atkinson being ill at the time, though he viewed the premises and heard the testimony.

The commissioners reported damages to the amount of $500 to Mr. Bledsoe by reason of the grading of the road making it necessary to make cuts from the road so as to permit ingress and egress from his premises. On February 27, 1908, Henry Bledsoe filed his exceptions to said report, and March 9, 1908, was set down to hear the same. After argument, on March 12, 1908, the court confirmed the report of the commissioners, and judgment entered accordingly in favor of Henry Bledsoe against Buchanan county. On the same day Henry Bledsoe filed his affidavit for an appeal to the Supreme Court, and his appeal was allowed, and thereupon leave was given him to file his bill of exceptions in said cause during the next regular term of said circuit court. The bill was not filed during the May term, 1908, of said circuit court; but leave was given to file the same during the second week of the September term, 1908. On the 1st day of September term, 1908, the time for filing the bill of exceptions was extended to October 12, 1908. On October 7, 1908, the bill of exceptions was filed in the circuit court, and the transcript was lodged in this court April 17, 1908. On May 8, 1908, on motion of the county, the cause was advanced to the October term and assigned to division No. 2 of the Supreme Court. Afterwards a motion to dismiss this appeal for failure to comply with the rules and because the cause should have been heard at the April term, 1908, was overruled by this division.

The first proposition advanced by the respondent, Buchanan county, is that this court is without jurisdiction of this appeal for the reason that section 9 of the act of the General Assembly approved March 26, 1903 (Laws Mo. 1903, p. 150 [Ann. St. 1906, § 9548-1]), provides: "Any party, including the county, aggrieved by the judgment may take an appeal therefrom by filing such an affidavit as is required in appealing civil cases; however such appeal shall be perfected within 30 days from the rendition of the judgment of the court on the verdict or report. In case of appeal, the...