Snoddy v. Cnty. of Pettis
| Decision Date | 31 January 1870 |
| Citation | 45 Mo. 361 |
| Parties | S. F. SNODDY et al., Defendants in Error, v. COUNTY OF PETTIS, Plaintiff in Error. |
| Court | Missouri Supreme Court |
Error to First District Court.
Philips & Vest, for plaintiff in error.
The verdict of a jury in the matter of opening roads is final and conclusive as to the matter of damages. No appeal lies therefrom. (Emory S. Foster et al. v. Dunklin, 44 Mo. 216.) The jurisdiction of the Circuit Court in such cases is confined solely to an examination of the record, and can reverse only for error apparent thereon. The Legislature have made no provision for an appeal in such case as the one at bar. ( Vide Gen. Stat. 1865, ch. 136, § 2.) The Legislature have expressly provided for a writ of error, applicable to all the necessities of the case at bar. (Gen. Stat. 1865, ch. 135, § 10.) The judgment of the District Court must be reversed, because the record shows no final judgment of the Circuit Court.Lay & Belch, for defendants in error.
I. In the case at bar, the statute gives the right of appeal.
II. Under section 49, Sess. Acts 1868, p. 149, the petition must specify the course and termini, with not less than two intermediate points on the road, and its direction. It must be signed by at least twelve resident householders of the township or townships through which the road is desired, and three of the twelve shall reside in the immediate neighborhood. These requisites do not appear.
III. The commissioner had no authority to adjudge the petitioners equally interested in the lands.
IV. The court erred in not finding, and entering of record such finding or judgment, that the County Court deemed the road “of sufficient utility.” This is essential, not only because it is required by the law (§ 52), but the validity of the law itself rests upon the doctrine of public use or necessity.
V. The court erred in ordering the road to be opened upon the mere statement that the petitioners would pay the damages. (Wagn. Stat. 1228, § 52.)
W. H. Powell and other petitioned the Pettis County Court for a new road, against which Snoddy and others remonstrated, and appealed to the Circuit Court from the order of the County Court establishing the road. Many questions are raised by the record, and the first pertains to the right of such appeal. The Circuit Court has “appellate jurisdiction from the judgments and orders of the County Courts in all cases not expressly prohibited by law.” But it does not follow that matters may be taken up in the ordinary form of appeal. When such appeal and the manner of taking it are not expressly provided for by statute, this appellate jurisdiction can not be exercised in that manner, but resort must be had to writs of certiorari, etc.; and in this case, had the point been raised in the Circuit Court, it would have been manifest error had the appeal not been dismissed. We perhaps should consider no other question, and vacate all proceedings since the appeal, for that reason. But, in deference to the action of this court in Cooper County v. Geyer, 19 Mo. 257, we will treat the record as though regularly brought up, inasmuch as this question was not raised below.
There is a defect in the proceedings of the Circuit Court, that, had the cause originated there, would of itself require us to send it back. There seems to be no final judgment. A motion was made by the appellants to revise the order of the County Court, setting forth the reasons in detail, which motion was overruled, and no other action was had. This is an unusual mode of assigning errors. But, whether correct or not, there should have been a judgment of affirmance or reversal. Upon error to the District Court, this action was treated as a judgment of affirmance, and was reversed for alleged errors in the proceedings of the County Court.
It is claimed that those proceedings were erroneous: First, because the petition does not show that twelve of its signers were householders of the township, etc. The statute is express that it must be signed by that number of householders, etc., three of whom shall be of the immediate neighborhood of the road. But it does not say that they shall be so described in the petition; and if they were so described, it would have been no evidence of the fact. This character of the petitioners must be proved to the satisfaction of the court before...
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