Shurtleff v. The Board of County Commissoners of Chase County
| Decision Date | 09 November 1901 |
| Docket Number | 12,509 |
| Parties | G. W. SHURTLEFF v. THE BOARD OF COUNTY COMMISSONERS OF CHASE COUNTY, KANSAS |
| Court | Kansas Supreme Court |
Decided July, 1901.
Error from Chase district court; W. A. RANDOLPH, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. HIGHWAYS -- Erroneous Judgment for Damages -- Jurisdiction. A mortgage given by H. to S. had been foreclosed, but before sale proceedings to lay out a road over the land had been commenced, and the viewers had received and allowed H.'s claim for his damages to the land occasioned by the location of the road, which claim was allowed by the board of county commissioners. S. did not at any stage of the proceedings file any claim for damages. After the allowance of damages to H. by the commissioners, S filed his notice of appeal therefrom to the district court and gave bond. Upon the hearing, the county attorney confessed judgment in behalf of S. against the county. Held, that the court did not err in setting aside such judgment upon the motion of the county commissioners, because the same was not only irregularly obtained but was a nullity.
2. HIGHWAYS -- Parties -- Right of Appeal. Under the statute, only the one aggrieved by a decision of the county commissioners can appeal therefrom, and, as in this case S. was not interested in the amount of damages allowed to H., he could not appeal, and his attempt so to do conferred no jurisdiction on the district court to hear and determine anything.
3. HIGHWAYS -- Confession of Judgment by County Attorney. The county attorney could not confer jurisdiction on the district court by appearing and confessing judgment in favor of S. in such proceeding, for the reason that S. could not appeal; and for the further reason that S., never having filed any claim for damages, had no claim before the court on which it could award judgment.
Madden Bros., for plaintiff in error.
Cochran & Butler, for defendant in error.
OPINION
On the 13th day of April, 1896, a petition in due form for the location of a road in Chase county was presented to the county commissioners and they made the necessary order for publication of the required notice and appointed viewers as required by statute. These viewers performed their duty in viewing the road and receiving claims for damages by reason of its location on the 20th day of May, 1896, and, among others, awarded to one J. R. Horner damages occasioned by such location. On July 6 the matter of this award to Horner came before the county commissioners for consideration and damages to a certain amount were awarded to him by them.
On the 9th day of November, 1895, plaintiff in error, in an action in the Chase county district court, obtained a judgment against the said J. R. Horner on a note given by him and for the foreclosure of a mortgage on the land, for damage to which Horner had been awarded compensation. On the 22d day of May, 1896, an order of sale on such judgment was issued, and on June 30 the land was sold to the plaintiff. On July 3, 1896, this sale was confirmed, and on July 6 a deed was made by the sheriff to the plaintiff for the land.
At no time did Shurtleff file any claim either before the viewers or before the county commissioners for damages done to him by reason of locating the road across this land. He did, however, on July 13, 1896, file with the county clerk a notice of appeal from this order awarding damages to Horner, and in such notice set out the facts relative to his mortgage and foreclosure thereof as hereinbefore recited, and at the same time filed his bond in appeal. Nothing further was done in the matter until November 9, 1896, which was the first day of the November, 1896, term of the district court of Chase county, when the notice of appeal herein referred to, as well as copies of all papers relating to the establishment of the road, and copies of all orders made by the board of county commissioners relative thereto, were filed in the office of the clerk of the district court, and at the same time the attorney for plaintiff and the county attorney appeared before the court and, without any proof being introduced or any further pleadings being filed, the county attorney confessed judgment in favor of the plaintiff and against the county commissioners for the sum of $ 400. On November 22, 1896, the commissioners, through an attorney employed for that purpose, filed their motion to set aside the judgment. This motion came on to be heard by the court on July 1, 1897, and, after the hearing of evidence in support of it, the judgment was set-aside and vacated. To reverse this order, this proceeding in error is prosecuted.
The motion to set aside this judgment was, perhaps, not sustained on any of the grounds set out in section 568 of the civil code (Gen. Stat. 1901, § 5054), authorizing the district court to vacate or modify its own judgments at or after the term at which the same were made, although we think it might have been sustained for the reason that it was irregularly obtained. It attacks the judgment principally for the reason that no cause of action was shown by the papers in favor of the plaintiff and against the county. It is urged, first, that, under many decisions of this court, Horner, and not Shurtleff, had the right to the damages arising from the location of the road; and, second, that, Shurtleff never having filed any claim for damages, neither the board of county commissioners nor the district court on appeal had any jurisdiction to award him damages, and that such appeal was not sufficient to sustain the judgment rendered. Without discussing the first question, we base our judgment herein upon the considerations arising on the second.
Section 5 of the act relative to roads and highways (Gen. Stat. 1901, § 6020) provides that the road-viewers shall not assess or award damages occasioned by the opening of a road to any persons unless they or their agents, having been duly notified, shall file a written application setting out the amount of the damages claimed. This application must be filed at the time of the hearing. It is further provided that, in case the persons damaged have not received notice of the view of the road as provided by law, they may have twelve months after the location of the road to file their applications for damages with the commissioners.
In this case, at the time of the view, Horner was the owner of the premises in question and presumably in possession thereof. As such owner, it may well be supposed that he suffered damages by reason of the location of the road; at any rate, he filed with the viewers his claim for damages. This claim was allowed in part by them and was the one finally passed on by the commissioners. Plaintiff never asked either viewers or commissioners to pass on his claim, and, in the absence of such request, legally preferred, they had no jurisdiction either to allow or reject. No order was made anywise affecting his claim. It is suggested that, under the decisions of this court, he had no legal claim in any event. Whether or not he had, we do not say. It is enough to say that he never preferred any. His proceeding purports to be, and is, if it is anything, an appeal from an...
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