State ex rel. Cornelius v. McClanahan
| Citation | 278 S.W. 88,221 Mo.App. 399 |
| Parties | STATE OF MISSOURI, EX REL. WILLIAM B. CORNELIUS, ET AL., RESPONDENTS, v. J. H. McCLANAHAN, ET AL., APPELLANTS. [*] |
| Decision Date | 07 December 1925 |
| Court | Court of Appeals of Kansas |
Appeal from the Circuit Court of Buchanan County.--Hon. Thomas B Allen, Judge.
AFFIRMED.
Judgment affirmed.
Randolph & Randolph for respondents.
Stephen Fee and P. C. Breit for appellants.
Trimble, P. J., absent.
This is an appeal from an order and decree of the circuit court of Buchanan county, Missouri, in a suit in mandamus to compel the county judges of Buchanan and Andrew counties to order a certain proposed road on the line between said counties opened and declared to be a public highway.
The proposed road was properly petitioned for and notices posted as required by law and presented to the county court of Buchanan county, on September 12, 1921. On September 26th the county judges of said counties met in joint session in Buchanan county, considered the petition and ordered the highway engineers of said counties to proceed to view, mark out and survey said proposed road, take relinquishments of all owners who would give the right of way and take the names of all owners who had not given or would not give the right of way and report to the joint court on October 17, 1921.
The joint court met on October 17, 1921, and adjourned to October 31st and on said last-named date an adjournment was taken to November 14, 1921, when a meeting was held and the highway engineers filed their report. This report showed that all parties who owned land through which the proposed road would run had signed relinquishments of right of way excepting J. C. Bunse and Bartlett Brothers. The engineers' report showed that the cost of establishing the road would be approximately $ 16,572, which figure included a bridge to cost $ 10,500. On said November 14, 1921, the joint session of the county courts issued and placed of record the following order:
"Now, here at this time the matter of opening of a public road on the Andrew-Buchanan county line in sections 20, 25, 29 and 28, Township 58, Range 34 west, coming before the court of Buchanan and Andrew counties in joint session, and it appearing to the court that the petitioners for said road have failed to secure the right of way for same and have not paid into the court any sum of money for damages for any land necessary to be taken in establishing said road, it is, therefore, ordered and adjudged by the court that said petition be dismissed."
The petition for mandamus alleges, and there was testimony in support thereof, that at the time the order of dismissal was made on November 14, 1921, J. C. Bunse and Bartlett Brothers had executed deeds of relinquishment for the right of way over their respective lands, and said deeds were then in possession of the county engineers of Buchanan and Andrew counties. Attorneys for the petitioners besought the county courts to set aside their order of dismissal of November 14, 1921, but no further action was taken by the county judges of the two counties and on November 26, 1921, relators filed their petition for mandamus in the circuit court of Buchanan county. An alternative writ of mandamus was issued on December 3, 1921, and after a hearing, and on January 11, 1922, the court entered a decree for a peremptory writ. Motions for new trial and in arrest were unavailing and defendants took an appeal to the Supreme Court. That court decided it was without jurisdiction in the premises, because no political subdivision of the State is a party to the suit; no constitutional question is raised, and the title to real estate is not involved. The cause accordingly was transferred to this court for consideration.
According to the contention of defendants, the report of the county engineers showed the relinquishment of the right of way for the proposed road had been made by all the parties affected with the exception of two, namely, J. C. Bunse and Bartlett Brothers. Plaintiffs state the matter somewhat differently in that they insist that both these parties did sign relinquishments in time for the consideration of the joint court, so that nothing remained for that body to do except to comply with the mandatory statute and order the road opened.
The result of this appeal, as we view the case, depends largely upon the proper determination of these conflicting views in the application of the law to the facts.
Defendants argue that mandamus is not the proper remedy because plaintiffs had a proper remedy by writ of error and that mandamus cannot be made to perform the office of a writ of error. And, arguendo, when the county court found that the rights of way had not been relinquished and it was not shown that the petitioners for the road would pay the expenses of its establishment, the joint court had a right to exercise its discretion and dismiss the proceedings.
Defendants' position in this respect, of course, is based upon the theory that the relinquishments had not been obtained. If that is true, the general rules applicable to proceedings in mandamus, above stated, are correct. However, while plaintiffs do not refute the above-declared rules relative to mandamus, they do insist that the...
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State ex rel. State Highway Commission v. Demarco
...252 S.W.2d 641, 643(2); Beck v. Kansas City Public Service Co., Mo.App., 48 S.W.2d 213, 215(1); State ex rel. Cornelius v. McClanahan, 221 Mo.App. 399, 402, 278 S.W. 88, 89--90(5).2 Section 523.060, R.S.Mo. (1959), and see, e.g., State ex rel. State Highway Commission v. Mahon, Mo.App., 350......
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...this court has exclusive jurisdiction of the appeal, and that the case involves no constitutional question. State ex rel. Cornelius v. McClanahan, 221 Mo.App. 399, 278 S.W. 88; State v. Nece, Mo.App., 255 S.W. 1075; Dickey v. Orr, 132 Mo.App. 416, 111 S.W. 910; State v. Veltrop, Mo.App., 6 ......
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