State ex rel. Galbraith v. McCutchan

• Decision Date: 05 June 1906
• Parties: STATE ex rel. GALBRAITH et al., Appellants, v. McCUTCHAN et al., Respondents
• Court: Missouri Court of Appeals

96 S.W. 251

119 Mo.App. 69

STATE ex rel. GALBRAITH et al., Appellants, v. McCUTCHAN et al., Respondents

Court of Appeals of Missouri, St. Louis

June 5, 1906

Appeal from Lewis Circuit Court.--Hon. Chas. D. Stewart, Judge.

AFFIRMED.

Judgment affirmed.

Richard J. McNally for appellants.

(1) The demurrer should have been overruled. Bell v. County Court, 61 Mo.App. 173; United States v. Windom, 19 D. C. 54; State ex rel. v. Baker, 32 Mo.App. 98; State v. Meyers, 30 Mo. 601. Mandamus will lie to compel county judges to pay warrants ordered by them. State ex rel. v. Judges, 48 Mo. 475; Veal v County Court, 15 Mo. 412. Nor could the county court vacate or set aside its said judgment after the term of court at which it was rendered passed. State ex rel. v Renick, 157 Mo. 299. The writ further avers that after all the proceedings aforesaid were set in motion by said county court that it is now estopped to deny or withdraw or reverse its own judgment and findings, and that it is the clear duty of said county court to enter an order of record requiring and directing that said road be opened upon the payment of the damages and costs by petitioners. All these allegations that are well pleaded are necessarily admitted by the demurrer. Dodson v. Lomax, 113 Mo. 555, 21 S.W 25; Verdin v. St. Louis, 131 Mo. 26, 33 S.W. 480, 36 S.W. 52. (2) The county court placed a grossly erroneous construction upon the law. That mandamus may issue where an inferior court places a misconstruction upon a law, is held by many adjudications: Castello v. St. Louis Court, 28 Mo. 259; State ex rel. v. Laughlin, 75 Mo. 358; State ex rel. v. Court of Common Pleas, 73 Mo. 560; Hanel v. Freund, 17 Mo.App. 618; In re Wilson, 95 Mo. 184; Carr v. Dawes, 46 Mo.App. 598. (3) The action of the county court in dismissing the cause was an abuse of assumed authority. Bullock v. Cook, 28 Mo.App. 222; State v. Parker, 106 Mo. 217, 17 S.W. 180; Collins v. Glass, 46 Mo.App. 297.

Marchand & Rouse and R. B. Noel for respondents.

(1) Appellants are seeking to have the circuit court compel the county court to perform a specific, to-wit: to enter an order of record requiring and directing that said road be opened upon the payment of the damages and cost by relators. This cannot be done. State ex rel. v. County Court, 41 Mo. 221; Trainer v. Porter, 45 Mo. 336; State ex rel. v. Byers, 67 Mo. 709; State ex rel. v. Court of Appeals, 87 Mo. 374; State ex rel. v. Flad, 108 Mo. 641, 18 S.W. 1128. (2) The alternative writ shows that the county court had not found that the road was of such great public utility as to justify the opening of same at the expense of the county, and it shows that the petitioners had not paid the ascertained damages and costs unto the county treasury for the use of the said Wm. H. Prentice. Hence the county court had no legal authority to make the order as asked by the appellants. High's Extraordinary Legal Rem. (3 Ed.), 20. If the court looks to the petitioners for the expense, it has no right to make the order until the amount is so deposited. Shoddy v. Pettis Co., 45 Mo. 64; Strahan v. County Court, 65 Mo. 645; Bell v. County Court, 61 Mo.App. 179; Galbraith v. Prentice, 109 Mo.App. 504, 84 S.W. 997. (3) The county court had complete jurisdiction of the subject-matter and acted in the premises and had entered a legal and final judgment and this writ will not lie to compel it to vacate and set aside the same. Dunklin County v. County Court, 23 Mo. 454; State ex rel. v. Lafayette Co. Court, 41 Mo. 225; State ex rel. v. Smith, 105 Mo. 9, 16 S.W. 1052; State ex rel. v. Cramer, 96 Mo. 83, 8 S.W. 788; State ex rel. v. Rombauer, 125 Mo. 635, 28 S.W. 968. The county court had complete jurisdiction and authority to decide the case; and it has decided the matter; and mandamus will not lie to compel it to reverse its decision. State ex rel. v. Young, 84 Mo. 90. (4) The county court had the authority to pay the damages assessed and order the road to be opened or dismiss the proceedings altogether and the offer of the petitioners to pay the damages did not make it obligatory upon the county court to order the road opened. Bell v. County Court, 61 Mo.App. 179; Forsyth v. Heege, 61 Mo.App. 280; Strahan v. County Court, 65 Mo. 645; (5) While the circuit court exercises a superintending control over the county court it has no authority to determine for the county court what judgment it shall render or to require it to reverse its decision. State ex rel. v. Gregory, 83 Mo. 136; State ex rel. v. Megown, 89 Mo. 157.

OPINION

GOODE, J.

--An alternative writ of mandamus was issued at the suit of the relators against the respondents as justices of the county court of Lewis county, commanding respondents to make and enter of record in due form an order that a certain public road be opened and established upon the relators' first paying to the treasurer of Lewis county the ascertained damages to William H. Prentice and the proper costs, or show cause against the command of the alternative writ at the September term, 1905, of the circuit court of said county.

A demurrer was sustained to the alternative writ and relators having refused to plead further final judgment was entered in favor of the respondents from which judgment this appeal was prosecuted.

The alternative writ describes the course of the public road which relators desired opened, states facts showing that Lewis County Court had acquired jurisdiction of a proceeding to open said road, and at its August term, 1901, had found that the probable expense of locating the road through the lands of Williams H. Prentice would be $ 75 whereupon the relators deposited $ 75 with the treasurer of Lewis county to the use of Prentice, who was the only individual through whose lands the proposed road would run who refused to relinquish the right of way for it; that on said deposit being made, the county court ordered the road commissioner of said county to survey and mark out said road, perform the other duties required of him by law, and make a report at the next term of the county court; that the commissioner reported at the November term, 1901, of said court, showing the location and survey of the road, the lands through which it would run, that the right of way had been given by all land-owners except Prentice, who refused either to convey the right of way through his farm or agree on the amount of damages he would sustain from opening the road; that at the same term the county court found Prentice had refused to accept the amount deposited by relators (petitioners in the original proceeding to open the road) and said county court further found that said proposed road was of great public utility and appointed three freeholders to view Prentice's premises and assess his damages; which having been done, the commissioners reported to the February term, 1902, of the county court a description of the tracts of land to be affected by the road and the damages assessed in favor of each one who had not relinquished the right of way; that said commissioners assessed Prentice's damages at $ 275; that Prentice filed an exception to said report at the same term of court; whereupon the cause was continued to the May term, 1902 and Prentice's exception was tried before a jury of freeholders and his damage assessed at the sum of $ 500. Whereupon it was ordered that the proposed road be opened and established upon the payment by petitioners (relators in this proceeding) of said damages and costs; that thereafter Prentice took an appeal from said judgment of the county court assessing his damages, to the circuit court, wherein there was a trial anew of his damage at the September term, 1902, of the court, before a jury, and a verdict was returned assessing his damages at the sum of $ 300; that thereupon it was ordered and adjudged by said circuit court that Prentice have and recover of Lewis county the sum of $ 300, together with his costs expended in his trial in the county court and that Lewis county recover of Prentice its costs expended at the trial in the circuit court, and that execution issue therefor; that Prentice appealed from said judgment to the St. Louis Court of Appeals, and at the October term, 1904, of the last named court, said judgment of the circuit court was in all things affirmed, except that it was modified so as to leave it to the discretion of the county court of Lewis county whether the damages and costs of opening the said road would be paid out of the county funds; that thereafter at the May term, 1905, the relators appeared before the county court, of which the respondents were judges, and applied to said county court for an order that said road be opened at the expense of Lewis county, which application was denied; that thereupon relators offered to pay all the damages and accrued costs in the cause, but the county court announced that under the opinion of the St. Louis Court of Appeals it was the duty of said county court to order the road opened at the expense of Lewis county or dismiss the cause and they had no discretion to order the road opened upon payment of damages by relators; that the county court arbitrarily ordered all proceedings in the cause dismissed; that the offer of relators to pay the damages and costs does not appear on the record of the county court for the reason that one of its judges ordered the clerk not to make an entry of the offer, wherefore affidavits...