Appeal from Circuit Court, Vernon County; B. G. Thurman, Judge.
Certiorari by the State, on the relation of J. W. Combs, against Jasper N. Staten and others, Justices of the Vernon County Court. From a judgment dismissing the writ, relator appeals. Judgment affirmed.
On October 7, 1912, a petition for a writ of certiorari was filed in the circuit court of Vernon county, Mo., 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, Mo., known as the Alva Ripley et al. public road, described as follows, to wit: (Here follows the description of the proposed road.)
"The relator further avers that said respondents have taken cognizance of and are proceeding to act in said matter thus brought before them, and are about to order said new public road opened, and are about to condemn and take from this relator a tract of land 40 feet in width and ½ mile long, through relator's land, described as aforesaid.
"Relator further avers that said respondents are therein acting without authority of law and without jurisdiction in the premises, for the reasons, first, that the notices of the intended application for said road were posted by the petitioners and made returnable at the July term, 1911, of said county court, but that proof of said notices was not made until the following October term, 1911, of said court. And that said petition for said new public road was not filed as indicated by said notices, nor was the same acted upon by said county court until the regular October term, 1911, and that then said county court proceeded to order said road surveyed by the county highway engineer without first having given the remonstrators an opportunity to be heard thereon, nor was any evidence heard by said court as to the public necessity, practicability, and probable damages to the owners of the land through which said proposed road would run, nor did they find and enter as a matter of record that said proposed road was a public necessity, or the practicability thereof, or that due notice of the intended application for said road was ever given, but proceeded at once to order the county highway engineer to view, survey, and to mark out said proposed public road; and then proceeded at once upon the report of said highway engineer to appoint three commissioners to assess the damages along said public road to the landowners, without having determined as a matter of record that said commissioners so appointed by them aforesaid were qualified under the law to act as such commissioners, in this, that they failed to find that they were disinterested freeholders of said county.
"Relator further avers that said proceedings of the respondents are altogether outside of the course of the common law, and likewise outside of any statutory or judicial proceedings, and that no writ of error or appeal lies to such proceedings from this or any other court to this relator.
"Wherefore the relator prays this court to issue a writ of certiorari, directed to the respondents in their official capacity as aforesaid
requiring them and each of them to certify to this court a true, full, and complete copy of the petition, remonstrance, record, and all other acts and proceedings in said matter, and have said copy returned to this court on or before the ____ day of ____, 1912, in order that this court may adjudicate upon the legality of said proceedings, and may make such other and further adjudication and orders therein as right and justice may require.
"J. B. Journey
"Attorney for Relator."
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:
"Comes now the defendants in the above-entitled cause and, for return to writ of certiorari issued against them, deny each and every allegation therein contained. Defendants state that all the proceedings concerning the road referred to in plaintiff's petition and writ were conducted according to law, and in pursuance with the statutes in such case made and provided.
"Defendants, for further return to said writ, hereby tender to the court the entire files and records of the county court in said road proceedings.
Scott & Bowker
"Attorneys for Defendants."
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:
"Now at this day comes the relator herein and moves the court to quash the proceedings of the county court in establishing and opening what is known as the Alva Ripley et al. public road, for the following reasons, to wit:
"(1) That the petition for said public road was not filed with said county court within the time prescribed by the notices for said public road.
"(2) That the county court failed to take proof, or find that notices of the intended application for said public road were posted according to law.
"(3) The county court failed to find that said public road petition was signed by twelve or more freeholders residing in the township where said proposed public road was to be established, three of whom resided in the immediate neighborhood of said proposed road.
"(4) That the said county court failed to take testimony, and failed to find that said proposed public road was a public necessity, the practicability and probable damages to the landowners through whose land said proposed public road would pass.
"(5) That the county court failed to appoint three disinterested freeholders to assess the damages to the landowners as provided by law.
"(6) That the county court failed to obtain jurisdiction in said road proceedings for other reasons appearing on the face of the record of the county court in said road proceedings."
The circuit court entered its decree in this cause, which, without caption, reads as follows:
"And on this 16th day of October, it being the ninth day of the regular October term, said cause coming on for hearing upon respondents' return and relator's motion to quash the proceedings of the county court as shown by said return, and the court after an inspection of said return, and after hearing the evidence and argument of counsel, enters the following judgment in said cause, to wit (omitting caption):
"Now on this day, the above-entitled cause coming on for hearing upon the petition, writ, and return of respondents herein, the court having fully considered the return and the writ issued in this cause, together with the records and files of the county court of said road proceedings, made a part of said return, the court, after duly considering the same and hearing the argument of the counsel, finds the issues joined in favor of the respondent; that said road proceedings described in the writ to the county court of Vernon county, Mo., were regular and according to law, and that the relator is not entitled to the relief prayed for.
"It is therefore ordered, adjudged, and decreed by the court that said writ be and hereby is dismissed at the cost of the relator, and that respondents have and recover their costs, and that execution issue therefor."
On October 18, 1912, relator filed his motion for a new trial for the following reasons:
"(1) That said finding and judgment are against the evidence, against the weight of the evidence, and against the law under the evidence.
"(2) That said finding and judgment is for the wrong party."
The above motion was overruled, the cause appealed to the Kansas City Court of Appeals, and relator given leave to file his bill of exceptions on or before the first day of the next regular term of said circuit court. No bill of exceptions was ever filed in the cause, although the judgment of the court below recites that evidence was heard at the trial.
J. B. Journey, of Nevada, Mo., for appellant. Scott & Bowker, of Nevada, Mo., for respo...
