Mayes v. Palmer

• Decision Date: 29 June 1907
• Citation: 206 Mo. 293,103 S.W. 1140
• Parties: MAYES et al. v. PALMER et al.
• Court: Missouri Supreme Court

103 S.W. 1140

206 Mo. 293

MAYES et al. v. PALMER et al.

Supreme Court of Missouri, Division No. 1.

June 29, 1907.

1. EVIDENCE—JUDICIAL NOTICE—ELECTION OF JUDGE.

The Supreme Court will take judicial notice of the appointment and subsequent election of a person to the office of circuit judge to fill the unexpired term of the deceased incumbent.

2. JUDGES—APPOINTMENT—ELECTION — TERM OF OFFICE.

Under Rev. St. 1899, § 1631 [Ann. St. 1906, p. 1203], providing that a vacancy in the office of judge of any court of record shall be filled by appointment, or until the next general election after the vacancy occurs, when the same shall be filled by election for the residue of the unexpired term, a person appointed circuit judge to fill a vacancy until the next general election, and then elected to fill the unexpired term, is judge without intermission from the date of his appointment to the expiration of the term.

3. HIGHWAYS — ESTABLISHMENT — APPEAL — HEARING DE NOVO.

Under Rev. St. 1899, § 9419 [Ann. St. 1906, p. 4333], providing that, in appeals, from the judgment of the county court opening a highway, etc., the circuit court shall be possessed of the cause, and shall hear and determine the same anew, the circuit court, on appeal from an order of the county court establishing a highway, has jurisdiction to determine the question of the public necessity of the proposed highway.

Appeal from Circuit Court, Lincoln County; H. W. Johnson, Judge.

Proceedings by William O. Mayes and others for the establishment of a public road, in which William Palmer and others filed remonstrances. From a judgment of the circuit court refusing to establish the road, rendered on appeal from an order of the county court establishing the road, the applicants appeal. Affirmed.

This case originated in the county court of Lincoln county. Appellants filed their petition in said court, asking for the establishment of a public road between the towns of Elseberry and Apex. The respondents, in due time, filed their remonstrance against the prayer of the petition. All jurisdictional steps in the case were properly taken and guarded. The county road commissioner filed his report, as required by law, and respondents filed their written exceptions thereto, and, after having heard both parties, the exceptions were overruled, and the road ordered established as prayed. The respondents duly appealed from the order and judgment establishing the road to the circuit court of that county, where a trial de novo was had, at the October term, 1904, thereof, before the Honorable H. W. Johnson, judge, sitting as a jury. When the cause was called for trial, numerous objections to the introduction of any evidence were made by the respondents, which were, by the court, overruled. The appellants then introduced evidence tending to prove all the allegations of the petition, and respondents introduced evidence tending to contradict and disprove those allegations. At the close of the introduction of all the evidence in the cause, the appellants requested the court to state its finding of facts in writing, separately; whereupon the court took the case under advisement, and thereafter, on November 21, 1904, in vacation, the judge made and filed with the clerk of said court his findings of fact and conclusions of law. The findings of fact sustained substantially the allegations of the petition and the regularity and legality of the proceedings, but in its conclusions of law declared that the proposed road was not of sufficient public necessity and practicability to justify the establishment of the same. The declarations of law given by the court are as follows: "From the foregoing facts the court concludes that the proceedings had in the county court were regular, and that this court obtained jurisdiction of the cause to try the same. The proposed road not being of public necessity, the petition should not be granted, but should be dismissed, and it is so ordered." Afterwards, at the October adjourned term of said court, held on the 21st day of December, 1904, the appellants excepted to the findings of fact and conclusions of law theretofore filed by the judge in vacation. The court then rendered judgment for the respondents. That on the same day they filed their motions for a new trial and in arrest of judgment, which were, by the court, overruled, and exceptions were duly saved, and they have timely appealed to this court from the judgment of the court refusing to establish the road and dismissing the petition.

Wm. A. Dudley and Martin & Woolfolk, for appellants. Norton, Avery & Young, for respondents.

WOODSON, J. (after stating the facts).

1. Appellants present but two questions to this court for determination. First. They contend that the Honorable H. W. Johnson, who tried the case below, was not in fact judge of the circuit court of Lincoln county at the time the judgment was rendered, and for that reason the judgment was and is a nullity. Second. That the question of the public necessity for the highway is a legislative question delegated exclusively to the county court, and the trial court erred in holding the proposed road was unnecessary. We will dispose of these questions in the order presented.

Regarding the first question, it may be said no such question was presented to the trial court. The record discloses that the trial was had "before the Honorable H. W. Johnson, judge, sitting as a jury," and is perfectly silent as to when or how he became clothed with authority to try the cause. The first mention of this question is found in the motion for a new trial, and that reference is in the following words: "First. The findings of facts and order dismissing the cause were not made and filed during the term of office of the judge who tried this cause. Second. The court has no jurisdiction to enter judgment upon proceedings had in this cause before his present term of office began." Without any evidence whatever to support it, we find in appellants' statement of the case in this court the following: "In the summer of 1903, Judge Hughes, of the Eleventh circuit died, and Hon. H. W. Johnson was appointed to succeed him; his commission expiring at the next general election, November 8, 1904. On November 8, 1904, Judge Johnson was elected to succeed himself for the remainder of Judge Hughes' term, receiving his commission a few days after the election." While the record is silent as to the appointment of Mr. Johnson as judge of the Eleventh circuit to succeed Judge Hughes, and to his election on November 8, 1904, to fill out the unexpired term of Judge Hughes, yet the appellants contend that it was the duty of the trial court, and is of this court, to take judicial notice of those facts, and that they are thereby presented as effectually to the court as if they had been established by proper evidence. In treating this question in volume 16, pp. 899 and 902, par. 3, Cyc., we find the following: "(a) In some of the states, courts are expressly required by statute to take judicial notice of whatever is established by law and judicial departments of the state and of the United States. * * * These statutes seem to be merely declaratory of the pre-existing rule upon the subject. (b) Courts of a state judicially know who is or who was at any time the chief executive thereof, or of any government formerly exercising sovereignty therein. Other officials including de...