Munroe v. Crawford

• Decision Date: 21 May 1901
• Citation: 163 Mo. 178,63 S.W. 373
• Parties: MUNROE et al. v. CRAWFORD.
• Court: Missouri Supreme Court

63 S.W. 373

163 Mo. 178

MUNROE et al. v. CRAWFORD.

Supreme Court of Missouri, Division No. 2.

May 21, 1901.

HIGHWAYS—OPENING — PROPERTY OWNERS — NOTICE — NECESSITY — VOID ORDER — ROAD OVERSEER—INJUNCTION—PARTIES—APPEAL.

1. In proceedings for injunction against a road overseer, where the legality of the order opening the road is questioned, the supreme court is the proper appellate tribunal.

2. Where a county court ordered a road to be opened without notice to interested parties, its order was void, and conveyed no authority on the overseer to open the road; and hence injunction would lie to restrain the overseer from tearing down and removing a fence in obedience to the county court's order.

3. Where the objection of want of necessary parties was not taken in the trial court, it will not be considered on appeal.

Appeal from circuit court, Adair county; Andrew Ellison, Judge.

Injunction by M. S. Munroe and others against William Crawford. From a judgment for plaintiffs, defendant appeals. Transferred from the Kansas City court of appeals. Affirmed.

J. C. Storm and J. A. Cooley, for appellant. H. F. Millan, for respondents.

BURGESS, J.

This case was transferred to this court by the Kansas City court of appeals upon the ground of the title to real estate being involved, hence not within the jurisdiction of that court. The proceeding is to enjoin defendant, who was at the time road overseer of road district No. 8, in Wilson township, Adair county, the district in which the road in question is located, from opening a road through plaintiffs' lands in pursuance of an order of the county court of that county, made on the 12th day of October, 1897, upon the ground that the order was made without notice to the parties in interest, and was therefore null and void, and the insolvency of the defendant. The court, after hearing the case, made the temporary injunction which had theretofore been granted perpetual, and rendered judgment against defendant for costs. The pivotal question in this case, in so far as the jurisdiction of this court of this appeal is concerned, grows out of the alleged want of jurisdiction of the county court of Adair county to make the order opening the road; for if, as alleged, the order was made without notice to the parties interested, it was void as to them. In Baubie v. Ossman, 142 Mo. 499, 44 S. W. 338, it was ruled that the supreme court, in a proceeding involving the legality of a proceeding to condemn land for a public...