In re Petition of Reynolds

• Decision Date: 31 July 1924
• Docket Number: 23653
• Citation: 264 S.W. 663,305 Mo. 1
• Parties: In Re Petition of A. M. REYNOLDS et al., Petitioners; J. E. POTTS et al. Appellants
• Court: Missouri Supreme Court

264 S.W. 663

305 Mo. 1

In Re Petition of A. M. REYNOLDS et al., Petitioners; J. E. POTTS et al. Appellants

No. 23653

Supreme Court of Missouri

July 31, 1924

Appeal from Lincoln Circuit Court; Hon. Edgar B. Woolfolk Judge.

Affirmed.

Grover C. Huston and Killam & Avery for appellants.

(1) The court erred in sustaining plaintiffs' (petitioners') motion to dismiss appellants' appeal from the final order and judgment of the county court condemning appellants' land and ordering the road opened, because: (1) Said order and final judgment was a judicial determination of the matter by the county court and therefore reviewable on appeal to the circuit court. State ex rel. v. Wiethaupt, 238 Mo 155, 167; Naeglin v. Edwards, 228 S.W. 766; Aldridge v. Spears, 101 Mo. 400, 406; Colville v. Judy, 73 Mo. 651; In re Incorporation of Uniondale, 203 S.W. 508; Kings Lake Drainage District v. Jamison, 176 Mo. 557; Scott County v Leftwich, 145 Mo. 31. (2) Appellants were entitled both under the statutes and decisions of this court, to appeal from the final judgment of the county court. Secs. 2436, 2584, R. S. 1919; Clark v. Kilbride, 282 Mo. 101; Platte County v. Locke, 294 Mo. 207; In re City of Uniondale, 225 S.W. 986; Colville v. Judy; 73 Mo. 653; State ex rel. v. McElhinney, 246 Mo. 54; Fitzmaurice v. Turney, 256 Mo. 187. (3) Failure of appellants to file exceptions to report of commissioners under provisions of Sec. 10629, R. S. 1919, did not prevent them from taking appeal from the final judgment of the county court. Secs. 2436, 2584, R. S. 1919; Clark v. Kilbride, 282 Mo. 101. Section 10629 is merely a limitation in the specific case with which it deals on the general right of appeal given by Section 2584. Clark v. Kilbride, 282 Mo. 101.

Creech & Penn for respondents.

The appeal from the county court was properly dismissed by the circuit court because it did not effect a transfer of the cause from the county court to the circuit court at the time or in the manner provided by law. Sec. 10629, R. S. 1919. And as the transfer was not made in conformity to said section, the jurisdiction was not transferred to the circuit court, but was retained by the county court. Sec. 10630, R. S. 1919. Appellants rely on Sections 2436 and 2584 to sustain their appeal, but those sections are repealed by Section 10629, which provides an exclusive method of appeal in the character of case in hand; its provisions are repugnant to the old sections, and it is a revision of the whole subject-matter of appeal in this class of cases and is a substitute for the old provisions of the law. 36 Cyc. 1073, 1077; Bishop's Stat. Laws, secs. 154, 168; State v. Draper, 47 Mo. 29; Pool v. Brown, 98 Mo. 675; State v. Taylor, 186 Mo. 615; Merriwither v. Love, 167 Mo. 514; Maret v. Huff, 185 S.W. 544; Wrightsman v. Gideon, 247 S.W. 142; Poindexter v. Pettis County, 246 S.W. 40; State v. Dalton & Fay, 134 Mo.App. 517; Smith v. State, 14 Mo. 147; State v. Roller, 77 Mo. 120.

OPINION

James T. Blair, P.J.

A. M. Reynolds and others petitioned the County Court of Lincoln County to open and establish a public road. The subsequent proceedings resulted in an order in accordance with the prayer of the petition. The present appellants filed an affidavit of appeal, and the county clerk attempted to allow an appeal to the circuit court. In that court a motion to dismiss the appeal was filed and sustained. From the judgment which followed, the present appeal to this court was taken.

The county court found, among other things, the required notice had been given, no remonstrance had been filed or presented, and the "proposed new road is a public necessity and . . . is practicable, and that the facts justify the establishment of the proposed road at the expense of the petitioners," and ordered the highway engineer to "view, mark out and survey" the road, take relinquishments, report damages claimed and estimate costs of construction, as the statute provides. After the engineer's report had been filed and approved, commissioners were appointed who qualified and subsequently filed their report. To this report no exceptions were filed and it was approved by the county court. Appellants then filed their affidavit and bond for appeal, which the clerk approved, and "ordered that an appeal be granted the appellants to" the circuit court. The petitioners, respondents here, moved in the circuit court to dismiss the appeal because: (1) appellants had raised no issue of fact or law in the county court; (2) appellants had filed no remonstrance; (3) no exceptions to the report of the commissioners had been filed by any one in the county court; and, therefore, (a) the "said report became the final determination of the amount of damages due appellants or any other party to the proceeding," and (b) "the county court retained jurisdiction of the cause, and the appellants were entitled to no appeal from the order of the court, opening and establishing the said road." Two days later the appellants filed in the circuit court their motion to dismiss the cause. Numerous grounds are contained in this motion. Some of these go to the jurisdiction of the county court and some set up irregularities in procedure. The trial court considered both motions at the same time. It sustained the motion to dismiss the appeal and overruled the motion to dismiss the cause. In this court appellants contend the trial court erred in (1) dismissing the appeal and (2) refusing to dismiss the cause.

I. The trial court was right in sustaining the motion to dismiss the appeal. Though the present statute does not expressly give a name to the method whereby a proceeding to open a public road is taken from the county court to the circuit court, yet it provides a way for the removal of such a proceeding, and the word "appeal" is a not inappropriate description of the process. The sections (Secs. 10629, 10630, R. S. 1919) which apply to this case provide:

"Sec. 10629. Within ten days after the filing of the report of the board of commissioners, any party in interest, including guardians of minors and insane persons affected by the proceedings, petitioners, and the county, may file written exceptions thereto. Upon the filing of written exceptions within the time specified, the county clerk shall forthwith make up a complete transcript of the records of the county court in said proceedings, and transmit the same, together with the original files, to the clerk of the circuit court of the county wherein the proceeding is pending. The circuit clerk shall file and docket said cause, and the same shall be triable at the same term, or the next regular or adjourned term of said court, after ten days from the date of filing. The circuit court shall proceed to hear and determine said cause anew as other causes are determined, except that no commissioners shall be appointed by it, and six qualified jurors may constitute a jury for the trial of the question of damages in said cause, but the court shall determine and declare by its judgment whether said road shall be established, and if established, whether at the expense of the county, or the petitioners, or both, and the judgment rendered in said cause shall not be reviewed on appeal or by writ of error. If the judgment is for the establishment of the road, a certified copy of the same shall be made by the circuit clerk and forthwith transmitted to the county clerk, and he shall record same as in the next succeeding section provided. The losing exceptors shall be adjudged to pay all costs of the proceeding had by reason of said exceptions.

"Sec. 10630. If none of the parties in interest file exceptions to the report of the commissioners within the time fixed by the next preceding section, the county court shall retain jurisdiction of the cause, and at its first sitting thereafter the court shall pay the damages awarded, or if the court refuses to pay them, and the petitioners pay them, the court shall order the road established, and said order and the report of the highway engineer thereon shall be recorded by the clerk of the county court in a book to be provided and kept for that purpose."

It appears from these sections that a transfer, under them, of a case like this from the county to the circuit court is conditioned upon the filing of exceptions to the report of the commissioners and that it is expressly provided that "if none of the parties in interest file" such exceptions "the county court shall retain jurisdiction of the cause, and at its first sitting thereafter shall" proceed to "order the road established" upon the payment of the damages awarded. Neither appellants nor any one else filed exceptions. They do not claim to have proceeded under Sections 10629 and 10630 nor that their appeal is supported or justified by those sections. Their position is that in a case like this an appeal lies under Sections 2436 and 2584, Revised Statutes 1919. The first of these defines the jurisdiction of circuit courts. The provision in Section 2436, upon which appellants rely, reads: "The circuit courts in the respective...