State ex rel. Combs v. Staten
Decision Date | 02 June 1916 |
Parties | THE STATE ex rel. J. W. COMBS, Appellant, v. JASPER N. STATEN et al., Judges of the County Court of Vernon County |
Court | Missouri Supreme Court |
Appeal from Vernon Circuit Court. -- Hon. B. G. Thurman, Judge.
Affirmed.
J. B Journey for appellant.
(1) The matter of establishing a public road is in the nature of condemnation proceedings, strictly a statutory proceeding and contrary to the course of the common law. The statute must be strictly complied with. Sec. 10435, R. S. 1909; Spurgeon v. Bartlett, 56 Mo.App. 355; Anderson v. Pemberton, 89 Mo. 601; Railroad v. Kellogg, 54 Mo. 334; Jefferson County v. Cowan, 54 Mo. 234; Whitelet v. Platt County, 73 Mo. 30; Bennett v Hall, 184 Mo. 407. Not one of the jurisdictional steps were taken by the court in this cause. Spurgeon v. Bartlett, 56 Mo.App. 355; Jones v. Zinc, 65 Mo.App. 409; Railroad v. Young, 96 Mo. 39; Strawhan v. County Court, 65 Mo.App. 644; Fisher v. Davis, 27 Mo.App. 321; Zimmerman v. Snowden, 88 Mo. 218; Taylor v. Todd, 48 Mo.App. 550. Each jurisdictional step must be taken before proceeding to the next step, and this must be done before jurisdiction can be acquired in the next step. Spurgeon v. Bartlett, 56 Mo.App. 355; Jones v. Zinc, 65 Mo.App. 409; Railroad v. Young, 96 Mo. 39. (2) There must be some connecting link when a cause is commenced on a certain day and continued from day to day and term to term. If a cause is revived at a day subsequent, or a term subsequent to the one at which it is commenced, there must be some notice to the adverse party of any intended action therein. (3) Unless a special called term is regularly and properly called, and the statutes complied with, the proceedings had at such term must necessarily be coram non judice. And especially is this true when such acts or proceedings are attacked in a direct manner, such as by writ of certiorari.
Scott & Bowker for respondent.
(1) The relator is not in a position to maintain this writ for the reason that it appears from the record in this case that he has no interest in the same and is not injured or damaged by any of the proceedings of the county court in said matter. Blodgett v. McVay, 108 N.W. 239; People v. Leavitt, 41 Mich. 470. (2) The writ of certiorari will not lie where there is a remedy by appeal. In this case all the matters complained of could have been reached by an appeal if there was any error. State ex rel. v. Nodaway County, 80 Mo. 500; State ex rel. v. Reynolds, 190 Mo. 578; Moore v. Bailey, 8 Mo.App. 156. (3) The proceedings of the county court in this case substantially comply with the statute and that is sufficient. Connors v. St. Joseph, 237 Mo. 612; Bennett v. Hall, 184 Mo. 407; Wilhite v. Wolfe, 179 Mo. 472. (4) The filing of the statutory petition and the giving of the proper notice give the county court jurisdiction of a road case and what happens after that is mere matter of error and can be corrected on appeal. Wilhite v. Wolfe, 179 Mo. 472; Bennett v. Hall, 184 Mo. 407; Chandler v. Reading, 129 Mo.App. 63. (5) If the court recites and finds the jurisdictional facts in its final judgment, this is sufficient. Chandler v. Reading, 129 Mo.App. 63; Wilhite v. Wolfe, 179 Mo. 472; Bennett v. Hall, 184 Mo. 407. (6) The county court had jurisdiction to act and enter final judgment at the time it did act at its special term on this road matter. State ex rel. v. Mitchell, 127 Mo.App. 455; R. S. 1909, sec. 4088.
On October 7, 1912, a petition for a writ of certiorari was filed in the circuit court of Vernon County, Missouri, which, without caption and the description of the proposed road, reads as follows:
"The relator herein, J. W. Combs, complains of the respondents, Jasper N. Staten, W. S. Creel and Jas. H. Caton, and for cause of action states that the respondents do now and did at all times hereinafter complained of, compose the county court of Vernon County, State of Missouri; and that on the day of October, 1911, it being the regular October term of the county court of said county and State aforesaid, there was commenced before said justices and in said county court a proceeding for the purpose of establishing a new public road in Harrison Township, Vernon County, Missouri, known as the Alva Ripley et al. public road, described as follows, to-wit:"
(Here follows the description of the proposed road.)
A writ of certiorari was issued in due form and served on defendants as the justices of said county court.
On October 7, 1912, respondents filed their return, which, without caption, reads as follows:
On October 16, 1912, relator filed a motion to quash the proceedings of the county court aforesaid, in respect to the establishing and opening of said road. Said motion, without caption, reads as follows:
The circuit court entered its decree in this cause, which, without caption, reads as follows:
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