State v. Wiethaupt

• Decision Date: 16 December 1911
• Citation: 142 S.W. 323,238 Mo. 155
• Parties: STATE ex rel. UNITED RYS. CO. OF ST. LOUIS v. WIETHAUPT et al.
• Court: Missouri Supreme Court

142 S.W. 323

238 Mo. 155

STATE ex rel. UNITED RYS. CO. OF ST. LOUIS v. WIETHAUPT et al.

Supreme Court of Missouri.

December 16, 1911.

1. PROHIBITION (§ 10)—GROUNDS—ACTS AND PROCEEDINGS OF COURTS.

A writ of prohibition will be issued to restrain an inferior judicial tribunal from exercising jurisdiction in a cause of which it is without jurisdiction.

2. PRIVATE ROADS (§ 2)—ESTABLISHMENT— JURISDICTION—APPEAL.

A petition to establish a private road through relator's land to a public road being denied by the county court, an appeal was taken to the circuit court. Sess. Acts 1871-72, p. 148, § 71 (Rev. St. 1899, § 9419), as amended in 1909 (Rev. St. 1909, § 10,440), which referred only to public roads, provided that appeals being allowed from the judgment of the county court assessing damages, or for the opening, changing, or vacating any road, the circuit court shall be possessed of the cause and shall proceed to hear and determine the same anew, but no appeal shall operate as a supersedeas, and no commissioners shall be appointed by the circuit court. This act as amended in 1909 allowed either party to appeal. Sections 3956 and 4091, respectively, provide that the circuit courts shall have appellate jurisdiction from the judgments of the county courts in all cases not expressly prohibited, and that in all cases of appeals from the county court the circuit court shall be possessed of the case and shall proceed to hear it de novo as if it originated there. Held, that the appeal could not be taken under section 10,440, for it applied only to public roads, and the amendment did not extend its scope, and hence, the appeal having been taken, the county court was entirely divested of jurisdiction and could not appoint commissioners to give effect to the order of the circuit court.

In Banc. Original petition by the State, on the relation of the United Railways Company of St. Louis, for prohibition against John Wiethaupt and others, as Judges of the County Court of St. Louis County and Commissioners thereof. Preliminary writ made perpetual.

Boyle & Priest, T. M. Pierce, and J. C. Kiskaddon, for relator. B. L. Matthews and Jos. C. McAtee, for respondents.

KENNISH, J.

This is an original proceeding by prohibition. Upon the filing of the petition a preliminary rule in prohibition was granted as prayed, and for return respondents filed a general demurrer to the petition. Relator is the United Railways Company of the City of St. Louis. The respondents are the judges of the county court of St. Louis county and three commissioners appointed by the said court in the matter of a proceeding for a private road petitioned for through relator's land. It appears from the facts stated in the petition, and admitted by the demurrer, that the McDermott Realty Company and John W. Bellairs (hereinafter referred to as petitioners), after having given due notice to relator, filed a petition in the county court of St. Louis county, asking for the establishment of a private road through relator's land to a public road. Upon the presentation of the petition to the county court, relator filed objections thereto, which, upon a hearing, were sustained and the petition denied. The petitioners appealed to the circuit court. The record before us does not contain the objections filed in the county court, nor the judgment of the court denying the petition, and we are left in the dark as to the character of the judgment from which the petitioners appealed. However, in the view we have taken of the case, we do not regard this omission as important. The case was tried on appeal in the circuit court, and judgment rendered that "the petition of the petitioners for a private road be and is hereby granted, and that these proceedings be now remanded to the county court of the county of St. Louis for the appointment by that tribunal of three disinterested commissioners to view the premises and mark out said private road and assess the damages to the owner or owners of the land through which it will pass, and make report to said county court as required by law, and for such other and further proceedings in and by said county court as provided by law." From the judgment of the circuit court relator appealed to this court and filed a supersedeas bond in the sum of $1,000. After the cause was remanded to the county court for further proceedings in conformity with the judgment of the circuit court, the county court appointed commissioners to view the premises, mark out the road, etc., whereupon relator applied for and obtained from this court the preliminary rule in prohibition against the judges of the county court and the commissioners so appointed, prohibiting them from entertaining or exercising further jurisdiction in the cause until the appeal of the said relator from the judgment of the circuit court to this court should be finally determined, and that respondents be required to show cause, if any they have, why said writ of prohibition should not be made perpetual.

By filing the demurrer to relator's petition, respondents challenge relator's right to the writ of prohibition upon the facts stated, and the issue of law is thus raised: Was the county court acting within its jurisdiction, in the proceeding to establish the private road petitioned for, at the time of the issuance of the preliminary rule by this court? It is the settled law of prohibition that the writ will be issued to restrain and prohibit an inferior judicial tribunal from entertaining and exercising jurisdiction in a cause, upon a showing that such tribunal is assuming to act judicially in a matter in which it is without jurisdiction, and if there was a want of jurisdiction in respondents, as judges of the county court, to act judicially in the matter complained of in the petition and under the facts as therein stated, then relator was entitled to the writ. Morris v. Lenox, 8 Mo., loc. cit. 253; State ex rel. v. Stobie, 194 Mo. 14, 92 S. W. 191; State ex rel. v. Tracy, 140 S. W. 888.

There is no disagreement between the parties hereto as to the exclusive original jurisdiction of the county court in a proceeding for the establishment of a private road. The controverted propositions are as to (1) the right of the petitioners to an appeal to the circuit court from the judgment of the county court dismissing the petition; (2) the section of the statutes under which an appeal is allowed, if at all, in such a case; and (3) the effect of such an appeal as to the subsequent proceedings in the cause.

The statutes to be considered in determining the questions thus presented are sections 10,440, 3956, and 4091, Revised Statutes 1909, and, so far as material, are as follows:

"Sec. 10,440. * * * Appeals to the circuit court shall be allowed either party from the judgment of the county court assessing damages, or for opening, changing or vacating any road, and upon such appeal the circuit court shall proceed to hear and determine the same anew; but no commissioner shall be appointed by the circuit court, nor shall any appeal, prior to the determination thereof in the circuit court, operate as a supersedeas of the proceedings of the county court. * * *"

"Sec. 3956. * * * The circuit courts in the respective counties in which they may be held shall have power and jurisdiction as follows: * * * Fourth. Appellate jurisdiction from the judgments and orders of county courts, probate courts, and justices of the peace, in all cases not expressly prohibited by law. * * *"

"Sec. 4091....