Overbeck v. Galloway
| Decision Date | 31 January 1847 |
| Citation | 10 Mo. 364 |
| Court | Missouri Supreme Court |
| Parties | OVERBECK & SHAW v. GALLOWAY. |
ALMOND, for Plaintiffs. Galloway's motion was properly overruled by the County Court for reasons: 1st. The opposite party, Overbeck & Shaw, had no notice of it. See Caldwell v. Lockridge, 9 Mo. R. 362. 2nd. Even if notice had been given, the County Court ought to have overruled said motion, because Galloway for himself and the other objectors as is shown by the record, was in court when the new route was established, and took no exception. So far, then, as Galloway and the objectors were and are concerned, the establishment of the new and the vacation of the old route, was not an ex-parte proceeding. 3rd. The bill of exceptions does not show that any testimony was introduced on or at the hearing of said motion, but only attempts to set out what the new route was established upon, on preceding days, and does not even state that that was all the evidence. 4th. Galloway then did not and has not preserved his case in his bill of exceptions. 5th. And I hold that where a county road has been established, though irregularly, upon the records of the County Court, although the viewers or any one else concerned with it may not have complied with the law in establishing it, still it is not competent for the County Court summarily on motion and with or without notice to any one, to rescind their orders, and thereby vacate roads. See Rev. Stat. State ed. 694, § 20 and § 23. But, secondly--The case dismissed by the Circuit Court was evidently and clearly the motion of Galloway. And why render a judgment for costs against Overbeck & Shaw, or either of them? Galloway was evidently the plaintiff on his motion in the County Court as well as in the Circuit Court--and although the County Court may have done wrong in establishing the new and vacating the old route, still if Galloway started a proceeding which ought to have been, and was dismissed, he, Galloway, ought to have been adjudged to pay the costs of it. See Franciscus v. Martin, 9 Mo. R. 197.
WILSON & REES, for Defendant. 1st. There is no petition in writing to the County Court as required by the 20th section of the statute under the head of Roads and Highways. 2nd. The commissioners took no oath as required by the 21st section, the words “faithfully and impartially” being omitted in their oath, which are of the very essence of the oath required. 3rd. The new road is not equally convenient to travelers as required by the 22nd section. 4th. No notice of application was given as required by the 22nd section. 5th. There were no commissioners appointed on remonstrance.
Overbeck and others, on the 6th April, 1846, presented their petition to the County Court of Platte county, praying for a change in the county road leading from Weston to St. Joseph, which was granted, and the change made, and the old road vacated. At the instance of Galloway the order was opened and the case adjourned over until the next Thursday (9th April), when, after hearing the evidence adduced by the objectors, the court proceeded to make the change asked for by the petitioners. On the 10th April, 1846, Galloway filed his motion to set aside the orders made by the court, on the petition of Overbeck and others, which being overruled, he excepted, and filed his bill of exceptions, together with an affidavit for an appeal, which was granted.
When the cause reached the Circuit Court, that court on an inspection of the record and bill of exceptions, reversed the order of the County Court granting the change of the road, and then dismissed the proceedings. Thereupon, Overbeck moved in arrest of judgment and for a new trial, which having been overruled by the Circuit Court, he excepted, and has brought the case here by writ of error.
The first and principal question arising in this cause involves the right of the defendant in error to maintain this proceeding. We have examined the statute regulating Roads and Highways, and can find no provision authorizing the objectors, sustaining the relation to the subject which Galloway does, to become a party to a proceeding in the County Court for a change in a road, and when the decision of that court is against his wishes, to take the case by appeal to the Circuit Court, and ask the Circuit Court to set aside the order of the County Court.
The record no where shows that Galloway has any other or different interest in the road from that of the public at large, and if he thus situated has a right to become a party to the proceedings, and when the decision is against him, the right of appeal to the Circuit Court to correct the error of the County Court, then every individual in the community has an equal right. This would not only be ruinous, but violative of those general principles, that a common interest which belongs equally to all, and in which the parties suing have no special or peculiar property, will not maintain a suit.
In the case of Cole, &c., v. Shannon, 1 J. J. Marsh. 218, the...
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