Sidwell v. Jett

• Decision Date: 14 July 1908
• Parties: SIDWELL et al. v. JETT.
• Court: Missouri Supreme Court

112 S.W. 56

213 Mo. 601

SIDWELL et al. v. JETT.

Supreme Court of Missouri, Division No. 2.

July 14, 1908.

1. APPEAL AND ERROR — RECORD—AMENDMENT IN TRIAL COURT AFTER JUDGMENT IN INTERMEDIATE COURT.

The Supreme Court will not stay an appeal from the circuit court after an appeal from the county court, to allow mandatory proceedings to compel the county court to correct its record as to time of rendition of its judgment, for if a corrected record were filed it would present matters on which the circuit court had no opportunity to pass, and might present a different case than that on which the circuit court rendered judgment.

2. HIGHWAYS — ESTABLISHMENT — JURISDICTION OF CIRCUIT COURT—STATUTORY PROVISIONS.

In view of Rev. St. 1899, § 1788 (Ann. St. 1906, p. 1248), providing that when any case shall be removed into a court of appellate jurisdiction by appeal from a county court, the appellate court shall be in possession of such cause and shall proceed to hear and determine the same anew in the same manner as if it had originated in that court, and the fact that the county court has original jurisdiction of proceedings to establish public roads, the circuit court has jurisdiction of such proceedings only by appeal from the county court under the provisions cited.

3. COURTS—COUNTY COURTS—APPEALS TO CIRCUIT COURT—TIME TO APPEAL.

Rev. St. 1899, § 1788 (Ann. St. 1906, p. 1248), provides that appeals from final determinations of the county court shall be prosecuted as provided by law for the regulation of appeals from justices of the peace to circuit courts, and section 4060 (page 2208), relating to justices' courts, provides that no appeal shall be allowed unless taken within 10 days after judgment rendered. Held, that no appeal will lie from the county court to the circuit court unless taken within 10 days after rendition of judgment.

4. HIGHWAYS — JURISDICTION OF CIRCUIT COURT.

The fact that the petitioners for a public road appeared in the circuit court on an appeal from the county court by an objector will not give the circuit court jurisdiction if the appeal was not taken in legal time, since the circuit court has no jurisdiction of the subject-matter except by duly perfected appeal, and jurisdiction of the person will not suffice.

Appeal from Circuit Court, Pike County; David H. Eby, Judge.

Proceedings by Albert Sidwell and others to establish a public road, in which George W. Jett and others file objections. From a judgment of the circuit court dismissing the proceedings on an appeal from the county court, petitioners appeal. Reversed.

J. E. Thompson, for appellants. J. H. Blair, for respondent.

GANTT, J.

This is an appeal from the judgment of the circuit court of Pike county dismissing a proceeding to establish a public road in said county. The proceeding began by the posting of notices of the presentation of the petition for said road as required by statute. Afterwards, on February 2, 1903, the petition signed by Albert Sidwell, William Baker, and 23 other resident freeholders of Buffalo and Quivre townships was presented to the county court, and proof of the posting of the notices made. No remonstrance was filed, and the county court, after hearing the evidence as to the utility of the road, made its order that the county surveyor and ex officio road commissioner mark out, view, and survey the purposed road and make its report at the next term of court. At the succeeding May term, 1903, the commissioner made his report, from and by which it appeared that he had obtained the right of way for the road from all the landowners except Mrs. Carr and Misses Bailey and Alton Walker, whereupon the court appointed W. T. Farmer, J. R. S. McCune, and John Hendrick, three disinterested freeholders of said county, to view the premises, hear complaints, and assess the damages. At the August term, 1903, the record of the county court recites that: "The commissioners herein, namely, John W. Hendrick, J. R. S. McCune, and R. H. Tinker, appointed to view and assess the damages to property owners over whose land said purposed road will run, made and filed with the clerk of this court a report of their proceedings, and, it further appearing that said report has become lost or misplaced, it is ordered that said commissioners make out and file instanter a duplicate of said report to supply and take the place of said last report, and now comes two of the commissioners, J. R. S. McCune and R. H. Tinker, and file a report, which the court find is a duplicate report of the one filed of said commissioners on the ____ day of June, 1903, and it is ordered by the court that said duplicate be taken and held and considered as the original report of said commissioners, from which said report it appears that said commissioners assess damages to Maggie Bailey and Lucy Bailey in the sum of $85, and that no damages were assessed to George W. Jett, Mrs. Carr, and Alton Walker, and now comes the said George W. Jett and Maggie and Lucy Bailey, by their respective attorneys, and leave is given them to file exceptions and objections to said report on or before the third day of the next regular term of the court to which this cause is continued." At the November term, said George W. Jett and Maggie and Lucy Bailey filed their motion to dismiss the cause for the reason that the road as surveyed and located passes over the lands of E. A. Morris and Susan McKinney, that they have not been made parties, the petition not giving them as owners of land over which the road is asked to be established, nor have they relinquished the right of way, and thereupon the cause was continued until February 15, 1904, at which time said motion was by the court overruled, and the road was ordered opened, and the petitioners given until the first day of the May term, 1904, to pay the damages assessed. The transcript from the county court, certified by the county clerk to the circuit court, recites that the order overruling the motion to dismiss and directing the road to be opened was entered on the 15th of February, 1904, and that afterwards on the 2d day of May, 1904, George W. Jett filed his affidavit in the county court for an appeal to the circuit court, and an appeal was granted to the circuit court on said date. After the case reached the circuit court, the petitioners filed their motion asking the circuit court to dismiss the appeal on the ground: First, that the circuit court had no jurisdiction of said appeal; second, because the statute does not provide for nor authorize the admitted appeal of the said Jett; third, because no remonstrance was ever presented or filed in the Pike county court, and under the law an appeal is only allowed from an order opening a road to remonstrators, who had first filed and presented a legal remonstrance at the legal time; and, fourth, because in this class of cases no right of appeal lies in appellants from the county court—which motion was by the circuit court overruled at the June term, 1904. At the June term, 1904, the cause was heard de novo, and the circuit court dismissed the petition and proceedings. Thereupon petitioners...