Moore v. Bailey

• Decision Date: 16 December 1879
• Parties: J. D. MOORE, Appellant, v. G. A. BAILEY, Respondent.
• Court: Missouri Court of Appeals

8 Mo.App. 156

J. D. MOORE, Appellant,

v.G. A. BAILEY, Respondent.

St. Louis Court of Appeals, Missouri.

Dec. 16, 1879.

An application in the Circuit Court for certiorari by way of appeal from the County Court in the matter of opening a private road should be denied; and if certiorari be improvidently issued, it should be dismissed. Such cases are appealable, and triable de novo.

APPEAL from the St. Charles Circuit Court.

Affirmed.

MCDEARMON & GAUSS, for the appellant: The issuance of the writ of certiorari is discretionary.-- Railroad Co. v. Whipple, 22 Ill. 108; Doolittle v. Railroad Co., 14 Ill. 381; Railroad Co. v. Commissioners, 112 Mass. 206; The People v. Andrews, 52 N. Y. 445. The Circuit Court has full power to issue the writ in this State.-- St. Louis v. Sparks, 11 Mo. 201; Cooper v. Geyer, 19 Mo. 257; Lewis v. Nuckolls, 26 Mo. 278; Foster v. Dunklin, 44 Mo. 216; Snoddy v. Pettis, 45 Mo. 361; Anderson v. St. Louis, 47 Mo. 479; Rogers v. Clinton, 60 Mo. 101; The State ex rel. v. Powers, 68 Mo. Appeal and certiorari are concurrent remedies, and “in many cases certiorari is the proper remedy to review proceedings of the County Court.”-- House v. Clinton, 67 Mo. 522; Britton v. Steber, 62 Mo. 370; Railroad Co. v. State Board, 64 Mo. 294; Owens v. Andrew County, 49 Mo. 372; Ray v. Parsons, 14 Texas, 370.

H. C. LACKLAND, for the respondent: Certiorari will not lie, there being an adequate remedy by appeal.--Wag. Stats., p. 431, sect. 2; p. 442, sect. 22; p. 1064, sect. 2; Boren v. Welty, 4 Mo. 250.

BAKEWELL, J., delivered the opinion of the court.

There was a certiorari sued out of the Circuit Court of St. Charles County by the appellant, directed to the County Court of St. Charles County. It appears that Bailey petitioned for the opening of a private road across the lands of Moore, to connect his lands with the Boonslick Road, and prayed for the appointment of commissioners. Objections of Moore were sustained to the first report, and the matter was recommitted to the same commissioners, who filed a report, signed by only two of their number, which they were allowed to withdraw and refile, signed by the three commissioners. A motion to dismiss the proceeding was then filed by Moore, and overruled; and Moore then filed objections to the report, which were all overruled, except as to damages. The question of damages was tried by a jury, who brought in a verdict: “We, the jury, find for the plaintiff the sum of one hundred and fifty dollars.” The court thereupon made the following order: “Court establish the road, and order that the same be opened in ninety days, provided damages and costs are paid as required by law.” Moore then sued out a writ of certiorari, on the ground that the final judgment of the County Court was erroneous, informal, illegal, and irregular. A motion was filed by Bailey to quash the writ of certiorari, which does not seem to have been passed upon at the time, but the Circuit Court proceeded to try the cause, and after admitting in evidence the transcript of proceedings in the County Court, rejected all oral evidence offered by Moore as to the location of the road, the existence of another road, the inconvenience of the road established in this proceeding, and that it ran over the land of persons not made parties to the proceeding, and who had not relinquished their right of way. The bill of exceptions states that the Circuit Court then rendered judgment for the defendant. The record proper shows that the court afterwards considered the motion to dismiss, and sustained the same.

The appellant, in his brief, urges many objections to the proceedings in the County Court, and to the action of the Circuit Court in excluding evidence. But we think that the Circuit Court committed no error in dismissing the writ; and this being so, we cannot consider the other questions which are presented in the brief of counsel for the appellant.

In Snoddy v. County, 45 Mo. 361, the Supreme Court held that, though the Circuit Court has “appellate jurisdiction from the judgments and orders of the County Courts in all matters not expressly prohibited by law,” yet resort must be had to the writ of certiorari, and not to the ordinary form of appeal, when it is desired to review the action of the County Court in the matter of opening a road, because the manner of taking such appeal was not then expressly provided for by statute. But, since the appeal in the case just referred to, the act of January 24, 1870, was passed, providing (Adj. Sess. Acts 1870, p. 45) that “in all cases of appeal from the final determination of any case in a County Court, such appeal shall be prosecuted to the appellate court in the same manner as is now provided by law for the regulation of appeals from justices of the peace to Circuit Courts; and when any cause shall be removed into a court of appellate jurisdiction by appeal from a County Court, such appellate court shall thereupon be possessed of such cause, and shall proceed to hear and determine the same anew,” etc. As the Circuit Court has appellate jurisdiction, and as the Legislature has provided for the exercise of this power by appeal, the writ of certiorari is no longer applicable to a case of this kind; and the writ, having been improvidently issued, was properly dismissed. Boren v. Welty, 4 Mo. 250.

While the Legislature had made provision only for the exercise of appellate power, without making any provision for a trial de novo in the Circuit Court, an appeal could perform nothing more than could be effected by certiorari; there was no provision for preserving the testimony, and in neither one case nor the other, could the superior court do more than examine errors apparent on the face of the record, without making any inquiry into matters of fact. Lewis v. Nuckolls, 26 Mo. 278; Lacy v. Williams, 27 Mo. 282. But now that the Legislature has conferred upon the Circuit Court the jurisdiction to try de novo, on appeal, all cases coming up from the County Court, it is manifest that such errors should be brought up in the manner provided by statute, and that an application for certiorari by way of appeal from a final judgment of the County Court should be denied. The writ is issued at common law to bring up summary proceedings had before inferior courts, where these proceedings are examinable on error, or, as with us, by appeal; the writ will not issue for the purposes of review. It issues for that purpose only where there is no other mode of directly reviewing the proceedings of the inferior tribunal. Railroad Co. v. Morton, 27 Mo. 318; Doolittle v. Railroad Co., 14 Ill. 383; The People v. Wilkinson, 13 Ill. 660.

The judgment of the Circuit Court is affirmed.

All the judges concur.BAKEWELL, J., delivered the opinion of the court on a motion for a rehearing.

A motion for a rehearing has been filed in this cause, which must be overruled.

As is stated in the opinion filed, Bailey petitioned for the opening of a road through the lands of Moore. The result was an order of the County Court opening the road. From this order an appeal lay to the Circuit Court, in the same manner as provided for appeals from the judgments of a justice of the peace; and the act giving the appeal directs a trial anew in the Circuit Court. Acts 1870, p. 45. Moore applied to the Circuit Court for a certiorari. Bailey moved to dismiss the petition; the motion was overruled and the writ issued. A motion was filed by Bailey to quash the writ. Bailey then filed a joinder in error. Afterwards the motion to quash the writ was sustained, and Moore appealed. These facts appear from the record proper. The bill of exceptions states, amongst other things, that “defendant filed his joinder in error. The court found the issues joined for defendant, and rendered judgment in his favor.”

Of these entries we could make nothing but this: that the Circuit Court, having improvidently issued the writ, took the matter under advisement; and after excluding, as the bill of exceptions shows, all oral testimony offered, reconsidered its action in issuing the writ, and quashed the proceeding.

In this we held that there was no error; because, where an appeal is given by statute, certiorari is not the proper method of bringing up the case for review.

Appellant contends that the whole record shows that the Circuit Court considered certiorari to be the proper method of bringing up the action of the County Court for review; that the writ was quashed, not because it was improvidently issued, but because the Circuit Court found no error in the proceedings; and that the quashing of the writ is, in effect, a decision on the part of the Circuit Court that the proceedings in the County Court were regular. Appellant further contends that the Circuit Court had jurisdiction to issue the writ, and that it was properly issued; and that the statute of 1870 changes nothing as to the method of bringing up cases from the County Court; and that the Supreme Court, since the passage of that act, has in many cases sanctioned the resort to certiorari as the proper means of obtaining a review of judgments of the Circuit Court.

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