Ross v. Conco Quarry, Inc.

• Decision Date: 03 November 1976
• Docket Number: No. 9754,9754
• Citation: 543 S.W.2d 568
• Parties: Wilma ROSS et al., Petitioners-Respondents, v. CONCO QUARRY, INC., and Graystone Quarry Company, Defendants-Appellants, and George W. Reed and J. Dan Woodall, as Judges of the Greene County Court, Defendants.
• Court: Missouri Court of Appeals

Page 568

543 S.W.2d 568

Wilma ROSS et al., Petitioners-Respondents, v. CONCO QUARRY, INC., and Graystone Quarry Company Defendants-Appellants and George W. Reed and J. Dan Woodall, as Judges of the Greene County Court, Defendants.

No. 9754.

Missouri Court of Appeals, Springfield District.

Nov. 3, 1976.

W. Ray Daniel, B. H. Clampett, Daniel, Clampett, Ellis, Rittershouse & Dalton, Springfield, for defendants-appellants.

John R. Lewis, Bruce K. Kirby, Kirby, Lewis, Cohick & Franks, Springfield, for petitioners-respondents.

Before STONE, P.J., and HOGAN and TITUS, JJ.

HOGAN, Judge.

By order dated June 5, 1973, the County Court of Greene County vacated a segment of a public road referred to here as Old Melville or Graystone Road. A hearing was held, but no stenographic record of the hearing was made. Upon petition for review filed pursuant to Rule 100 (Chapter 536, RSMo1969, V.A.M.S.) ¹ the Circuit Court of Greene County, over the appellants' objection that the court had no jurisdiction, remanded the cause for the preparation of a record. See In re Village of Lone Jack, 419 S.W.2d 87, 90(3) (Mo. banc 1967). Thereafter on December 11, 1973, the county court heard evidence, received exhibits and on January 16, 1974, again vacated the same part of the same road. On January 25 the remonstrants filed a notice of appeal in the circuit court, purportedly in compliance with § 49.230, and on January 28 filed a petition for review of the second order of vacation. The circuit court set aside the second order of vacation on the ground that it was not supported by competent and substantial evidence on the whole record. Conco and Graystone Quarries, which were permitted to intervene in the first circuit court proceeding pursuant to Rule 100.04(c), now appeal from the judgment setting aside the second order of vacation.

The appeal has been meticulously briefed and argued in this court on two points. The first point made by appellants presents a question of statutory construction. Summarized, the appellants' principal contention is that because the respondents did not file the notice of appeal required by § 49.230 following the first order of vacation and because compliance with § 49.230 was mandatory and jurisdictional, therefore: 1) all acts and events subsequent to the first order of vacation, i.e., the remand to the county court, the second hearing, the second order of vacation, the second review proceeding and the review itself were nullities, and in consequence, 2) the first order of vacation is a valid and subsisting order in all respects, and the circuit court erred in purporting to exercise jurisdiction over the subject matter. Respondents counter with several arguments. They say that neither § 49.230 nor Rule 100.04 (§ 536.110) provides an exclusive method for review of a valid administrative order, and further argue that the circuit court always has jurisdiction to review and remand a void order. The respondents further maintain that absolute compliance with § 49.230 was not mandatory because § 228.120(2) provides the specific procedure to be used in seeking review of an order vacating a public road pursuant to § 228.110.

A preliminary word about the first order of vacation and the first review proceeding in the circuit court seems appropriate. The county court's record shows on its face that the court issued its first order without obtaining a report from the county highway engineer, as required by § 228.070. Therefore, the first order was absolutely void. Morris v. Karr, 342 Mo. 179, 183--184, 114 S.W.2d 962, 964--965(3)(4) (1938); Burrows v. County Court of Carter County, 308 S.W.2d 299, 301(1) (Mo.App.1957); Tummons v. Stokes, 274 s,.w. 528, 529(2) (Mo.App.1925), cert. quashed, State ex rel. Tummons v. Cox, 313 Mo. 672, 680, 282 S.W. 694, 695--696(5) (banc 1926). Whether one considers § 49.230 or § 228.120(2) as prescribing the proper or exclusive method of procedure, the circuit court's jurisdiction was appellate, not original jurisdiction. § 478.070(4); and see State ex rel. Board of Registration for the Healing Arts v. Elliott, 387 S.W.2d 489, 492--493(2, 3) (Mo. banc 1965). In this state, appellate courts acquire no jurisdiction on appeal from a void order except jurisdiction to determine the invalidity of the order or judgment appealed from and dismiss the appeal. Kansas City Sanitary Co. v. Laclede County, 307 Mo. 10, 14--15, 269 S.W. 395, 397(2)(3) (banc 1925); In re Moore's Estate, 354 Mo. 240, 249, 189 S.W.2d 229, 234--235(6) (1945); Morris v. Karr, supra, 342 Mo. at 184, 114 S.W.2d at 965(4). Inasmuch as the county court's first order was void on its face, the circuit court might properly have dismissed the appeal or petition for review of the first order, but it could do no more. The circuit court did not dismiss the petition for review; it expressly and in terms assumed jurisdiction and remanded the case, which was in itself an exercise of appellate judicial authority. See Durwood v. Dubinsky, 361 S.W.2d 779, 783(1) (Mo.1962). We therefore conclude that to the time the county court commenced the hearing which led to the second order of vacation the whole proceeding was a nullity.

Nevertheless, it was not necessary to begin completely anew. We grant that a court of general jurisdiction, having exhausted its adjudicative function and having entered a final judgment, cannot thereafter vacate the first judgment by entering another. State ex rel. Berbiglia v. Randall 423 S.W.2d 765, 769(5) (Mo. banc 1968). In this case, however, the county court had never validly exercised its authority up to the time the second hearing was begun. Its action in resuming the hearing, receiving further evidence and entering a new order undoubtedly had the effect of vacating and abrogating the first, void order, St. Louis County v. Menke, 95 S.W.2d 818, 820 (Mo.App.1936), and in our view the county court was at liberty to consider the petition for vacation as if the first, void order had never been entered. The record clearly shows that the respondents did not comply with the requirements of § 49.230 after the second order of vacation was entered and therefore the procedural question remains the same: Does § 49.230 prescribe the mandatory and exclusive procedure to be followed in seeking review of an order of a county court vacating a public road? If so, it may be granted that strict compliance with the prescribed procedure is mandatory and jurisdictional. Brogoto v. Wiggins, 458 S.W.2d 317, 318--319(2, 3) (Mo.1970); American Hog Co. v. County of Clinton, 495 S.W.2d 123, 127(7) (Mo.App.1973); In re City of Duquesne, 313 S.W.2d 65, 69(6) (Mo.App.1958).

For a number of reasons, we do not believe § 49.230 was legislatively intended to provide such an exclusive procedure. Section 49.230 was enacted by the 70th General Assembly in 1959, Laws of Mo.1959, S.B. 65, pp. 4--5. In material part, it reads (emphasis supplied):

'Appeals from the decisions, findings and orders of county courts of a quasi-judicial nature affecting private rights shall be made within ten days from the date of the decision, findings or order by filing notice of appeal with the county court. . . . The circuit court shall proceed to hear and determine the case in the manner provided by section 536.140, RSMo. Appeal from the decision on review may be taken by the county court or other aggrieved party as in civil cases.'

Perhaps it can be said that an order of a county court vacating a public road, or part of a public road, is a quasi-judicial order. Duenke v. St. Louis County, 358 Mo. 91, 98, 213 S.W.2d 492, 496(6) (1948); Kelley v. Waymeyer, 356 Mo. 1043, 1046, 204 S.W.2d 744, 745(1) (1947). But while we are conversant with the authorities which give the phrase 'private right' a broad definition in the context of administrative rulings, e.g., State ex rel. State Highway Commission v. Weinstein, 322 S.W.2d 778, 783(2--4) (Mo. banc 1959); Smith v. Missouri State Highway Commission, 488 S.W.2d 230, 234--235 (Mo.App.1972), we do not believe the order of vacation affected the quarries' 'private rights'. One of the appellants' principal concerns here is their expenditure in repairing parts of the road damaged by their heavy equipment. According to Mr. Innes, employed by Graystone, the quarries use the segment of the road involved in their commercial operations. Heavy vehicles used by the quarries and their customers cause damage to the road, and the quarries have spent more than $10,000 repairing that damage in the 15 years preceding the county court's second hearing. Mr. Innes testified that the appellants 'have seal-coated the road numerous times, we have repaired pot holes, we call them . . . we have resurfaced at least a quarter mile of the road and (have made) other numerous repairs.' At one point during the hearing the appellants offered to construct a sort of alternate route, at their expense, to replace the section of road to be vacted. We are in no doubt that the cost of repairing and maintaining the road is a matter of legitimate, even pressing concern to the quarries, and we do not suggest that an order of vacation would be invalid merely because it operated to their benefit; we do suggest that the damages suffered by the appellants because of the existence of the road differs from that suffered by the public only as a matter of degree, and that their voluntary expenditure gives them no 'private right' to have the road vacated. ²

We do not, however, place our decision on the ground that no 'private rights' were affected, although we believe that to be the case. In our view, the basic fallacy of the appellants' position appears upon consideration of the history and language of § 228.120(2), with which the respondents fully complied. Present § 228.120(2) was enacted by the General Assembly in 1949, Laws of Mo.1949, p. 553, and in its original form read (our emphasis):

'Section 8477.

3. Any order of the county court establishing or...