In re Critzer

• Decision Date: 16 July 1918
• Docket Number: No. 19217.,19217.
• Citation: 205 S.W. 16,275 Mo. 514
• Parties: In re CRITZER et al. CRITZER et al. v. BLACKBURN et al.
• Court: Missouri Supreme Court

205 S.W. 16

275 Mo. 514

In re CRITZER et al. CRITZER et al. v. BLACKBURN et al.

No. 19217.

Supreme Court of Missouri. Division No. 2.

July 16, 1918.

Appeal from Circuit Court, Lawrence County; Carr McNatt, Judge.

Petition by W. W. Critzer and others, for the establishment of a public road, wherein a remonstrance was filed by Sabra Blackburn and others. From the judgment of the circuit court on appeal from the county court ordering that the road be established, the remonstrators appeal. Affirmed.

See, also, 189 Mo. App. 61, 175 S. W. 104.

This proceeding, originally instituted in the county court of Lawrence county, seeks to establish a new road one-half mile in length along the north half of a line running north and south through the center of section 9, township 29, range 27, Lawrence county, Mo. The proposed road is an extension of a north and south road coming down from the north and will also connect two parallel roads running east and west, one along the north and the other along the center line of said section 9. A remonstrance was properly filed, attacking the public necessity of the proposed road. The matter proceeded in the regular way in the county court, resulting in a judgment finding the proposed road was a public necessity, and ordering the same established. Three persons whose lands were taken by the new road filed exception to the Commissioner's report on damages, and a trial was had before a jury in the county court, which resulted in a separate judgment reassessing the damages. The remonstrators filed in the county court the following affidavit for appeal to the circuit court (caption and signatures omitted):

"Before the clerk of the Lawrence county court, of Lawrence county, Mo., M. S. Ginn, attorney for defendants, being duly sworn, upon his oath says that he is attorney for the defendants, and that their application for appeal is not made for vexation or delay, but because they believe the appellants to be injured by the judgment of the Lawrence county court, in ordering the establishment of a public road in the north half of section 9, township 29, of range 27, in Lawrence county, Mo." (Italics ours.)

The county court made an order granting an appeal to the circuit court. The question as to the public necessity of the proposed road was tried de novo in the circuit court. Upon the trial in the circuit court the petitioners offered substantial evidence tending to prove that the proposed road was a public necessity. On the other hand, the remonstrators offered evidence tending to show that the proposed road was not a public necessity. After hearing the evidence the circuit court entered judgment, finding that the proposed road was a "public necessity and practical," that all necessary steps required by law had been properly taken by the petitioners, and ordered that the proposed road be established. Thereupon the remonstrators duly perfected an appeal to this court. Any additional facts found to be necessary to an understanding of the points raised will be mentioned in the course of the opinion.

M. S. Ginn, of Miller, and William B. Skinner and Robert Stemmons, both of Mt. Vernon, for appellants. James E. Sater, of Monett, and John L. McNatt, of Aurora, for respondents.

WILLIAMS, J. (after stating the facts above).

I. Appellants first contend that the circuit court erred in admitting the certified copies of the roll and record of the entire proceedings in this cause in the county court in evidence. At the time the above documents were offered in evidence it does not appear that appellants made any objection thereto. Furthermore, even though objection had been properly made, we are unable to see wherein this constituted error in the present case. The certified copies of documents offered in evidence were contained in the transcript of the case on appeal from the county court to the circuit court, properly certified to by the county clerk. All portions relating to jurisdictional matters such as the pleadings, etc., properly contained in the transcript, were proper matters for the court's consideration, and it was not even necessary that they be formally offered in evidence. So far as the trial in the circuit court was concerned, the transcript of such matters took the place of original pleadings, etc. The case of Railroad v. Pfau, 212 Mo. 398, 111 S. W. 10, relied upon by appellant, has no application to the present case. In that case it was held erroneous to read the commissioners' report or award of damages in a condemnation case to the jury impaneled to try the same issue of damages upon exceptions to the commissioners' report. In the present case the issue as to damages was not being tried before the circuit court, and, that being true, those portions of the admitted transcript, showing the amount of damages reported by the commissioners in the county court, could in no manner have operated to appellants'...