Reeves v. Green

• Decision Date: 02 June 1920
• Citation: 222 S.W. 795,282 Mo. 521
• Parties: FRANK REEVES et al. v. I. E. GREEN, Appellant
• Court: Missouri Supreme Court

222 S.W. 795

282 Mo. 521

FRANK REEVES et al. v. I. E. GREEN, Appellant

Supreme Court of Missouri, First Division

June 2, 1920

Appeal from Ripley Circuit Court. -- Hon. J. P. Foard, Judge.

Affirmed.

Charles B. Butler for appellant.

(1) The petition must show all jurisdictional facts. There is nothing in the petition that shows that the road runs through Varner Township or that any of the petitioners are residents thereof. All facts necessary to confer jurisdiction must appear in the records of the county court. The record must show that the petition was signed by twelve freeholders of the municipal townships through which the road runs. Railroad v. Young, 96 Mo. 39; State ex rel. v St. Louis County, 254 Mo. 329; City of Tarkio v Clark, 186 Mo. 285. (2) The law will be strictly construed. Spurgeon v. Bartlett, 56 Mo.App. 349; Williams v. Beatty, 139 Mo.App. 167; State ex rel. v. St. Louis County, 254 Mo. 329; State ex rel v. Duncan, 150 Mo.App. 403; City of Tarkio v. Clark, 186 Mo. 285. (3) The residence of petitions is a jurisdictional fact which must be found by the county court before it can take jurisdiction over the subject-matter, and the records of the county court must show that the petitioners possessed every necessary qualification without which further proceeding is a nullity. Fisher v. Davis, 27 Mo.App. 321; Jefferson County v. Cowan, 54 Mo. 234; Colville v. Judy, 73 Mo. 651. This the record of the county court fails to recite. (4) The fact of having given the required notice should also be found and appear in the records of the county court. Railroad v. Young, 96 Mo. 39; Lingo v. Burford, 112 Mo. 149. (5) The records of the county court do not show that the petition was signed by twelve freeholders of the municipal townships of Thomas, Washington and Varner and that notices were posted twenty days before the first day of the term of court at which the petition was presented, one of which was at the beginning and one at the terminus of the road. The circuit court had no jurisdiction to find these facts on the trial de novo. Fisher v. Davis, 27 Mo.App. 321; Haggard v. Railroad, 63 Mo. 303; Gist v. Loring, 60 Mo. 487; McQuoid v. Lamb, 19 Mo.App. 153; Whetley v. Pratt, 73 Mo. 30; Ellis v. Pacific Ry. Co., 51 Mo. 200; Leonard v. Sparks, 63 Mo.App. 585. Patchen v. Durett, 116 Mo.App. 437; Purcell v. Merritt, 172 Mo.App. 418. (6) It is not admissible to make a nunc pro tunc order based upon any amount of oral testimony nor upon the memory of the judge. Such entry can only be made upon evidence furnished by the papers and files in the cause or something of record as a basis to amend by. There is nothing in the record in this cause whereby the court could make the nunc pro tunc order herein. There is nothing in the records that shows the residence of petitioners or that notices were legally posted. Exchange Bank v. Allen, 68 Mo. 476; Jones v. Hart, 60 Mo. 356; State v. Jeffers, 64 Mo. 378; Ross v. Railroad, 141 Mo. 395; State v. Libbey, 203 Mo. 596; Crawford v. Railroad, 171 Mo. 68; Collier v. Lead Co., 208 Mo. 273.

Borth & Ferguson and J. F. Fulbright for responddents.

The county court has jurisdiction over the establishment of public roads, and when the proper petition is filed and the notice required by statute is given the court has jurisdiction over the cause. If the petition is signed by at least twelve freeholders of the municipal township or townships through which said proposed road runs, three of whom are of the immediate neighborhood and said petition is accompanied by the names of all resident persons owning land through which said proposed road runs, with the amount of damages claimed by them and the names of those who are willing to give the right of way of said proposed road, the county court is possessed with jurisdiction and no error or irregularity on the part of the county court will dispossess it of jurisdiction or render the whole proceeding void so as to vitiate the proceedings on appeal in the circuit court and the circuit court is not bound by the errors or irregularities of the county court nor hindered thereby in its jurisdiction. Bennett v. Hall, 184 Mo. 407; Stutz v. Cameron, 254 Mo. 340; Davis v. O'Bryant, 175 S.W. 931; Ripkey v. Binns, 175 S.W. 206.

GRAVES, J. Woodson, J., absent.

OPINION

GRAVES, J.

After the rejection of one opinion here, this cause has been reassigned to the writer. It involves the establishment of a public road in Ripley County. The appeal was taken to the Springfield Court of Appeals, and by that court certified here on the ground that title to real estate is involved. Plaintiffs (respondents) were petitioners for the establishment of a certain public read in Ripley County, a proceeding instituted in the County Court of Ripley County. The road was ordered, and a part of the appellant's land will be required and taken therefor. Upon appeal to the circuit court the road was ordered, appellant's damages assessed, and from such judgment is this appeal. The questions urged by the assignment of error in the brief go to the jurisdiction of the county and circuit courts of said county. The pertinent facts can best be stated with the points made, and in the course of the opinion.

I. A preliminary question presents itself. There was a motion filed in the Springfield Court of Appeals to affirm the judgment for a failure to file therein a transcript of the judgment within the time prescribed by law, and for a failure to comply with the rules of that court in filing an abstract and brief. The appeal was granted more than sixty days prior to the October term of the Springfield Court of Appeals, but no transcript of the judgment was filed there until October 20th of the year of the appeal. The appellant filed in that court an affidavit showing that he had directed the circuit clerk to make out and forward a transcript of the judgment to the Springfield Court of Appeals, and had paid the docket fee of that court ($ 10), and thought the clerk of the circuit court had attended to the matter. The transcript when filed shows that the docket fee of $ 10 was paid to the Clerk of the Springfield Court of Appeals, by the Circuit Clerk of Ripley County. The Springfield Court of Appeals finding itself without jurisdiction, has certified the whole matter here, including this motion to affirm the judgment and the showing contra.. We need not go further than to say that, under our statute, appellant made a good showing as against the motion to affirm the judgment, and this motion is therefore overruled.

II. As suggested, the attack is upon the sufficiency of the showing as to jurisdiction, both in the county court and the circuit court. In the circuit court there was a motion to dismiss the proceeding for want of jurisdiction. The petition for the road (as filed in the county court) in part said:

"We, the undersigned citizens of said county, at least twelve duly qualified and competent adult petitioners, residents of and in own proper right owners of land in the municipal townships hereinafter named, that is to say, at least twelve freeholders of the municipal townships hereinafter named, three of whom reside in the immediate neighborhood of the following described proposed road, respectfully represent and aver that the proposed public road hereinafter described, is forty feet in width, and situated in the Municipal Township of Thomas and Washington, in the County of Ripley and State of Missouri, and is of sufficiently great utility to the general public, and is not a change of a previous location, and that the beginning, courses and termination thereof, with not less than two points named on the direction of said public road, are as follows, to-wit: . . .

"And we further aver that said public road is entirely practicable and a public necessity. And we further aver that the said public road is whenever practicable along Government surveys, and that this petition is accompanied by the names of all residents and other persons owning land through which said proposed public road shall run, with the amounts of damages claimed by each of them so far as can be ascertained, and also by the names of all those who are willing to give the right of way for said proposed public road; and we further aver that as and for public notice of this application not less than three triplicate original written handbills were by said petitioners duly put up in not less than three distinct, separate and independent public places in said municipal townships, one at the proposed beginning of said public road, and one at the proposed termination of said public road and one at Naylor post office in said Thomas Township, in said county, more than twenty days before the first day of the regular term of said county court at which this application is presented, to-wit, before and on Monday the 3rd day of August, 1914, and there maintained to this date, and that a duplicate original copy of one of said public notices is herewith filed with return thereof duly entered thereon, and that by said means public notice of this application has been duly given, and said county court has duly obtained jurisdiction of the subject-matter and of all parties herein, and that the facts herein justify the establishment of said public road at the expense of said petitioners. Wherefore, said petitioners pray an order for the establishment of said proposed public road, and for all proper relief.

"Dated at said county, this 3rd day of July, 1914, as witness our respective hands, full names and proper signatures."

Then follows the signature of nineteen persons. The foregoing is the entire petition, except the description of the proposed road. At the August term of the county court, the following order was made:

"The court...