Strahan v. Cnty. Court of Audrain Cnty.
| Decision Date | 31 October 1877 |
| Citation | 65 Mo. 644 |
| Parties | STRAHAN, PLAINTIFF IN ERROR v. THE COUNTY COURT OF AUDRAIN COUNTY. |
| Court | Missouri Supreme Court |
Error to Audrain Circuit Court.
Craddock & Musick and Hockaday & Silver for plaintiff in error, insisted that plaintiff was entitled to a judgment against the petitioners for the opening, or else, if it was thought the county should pay the damages, then that he should have a warrant on the county treasury, citing Wilson v. Berkstresser, 45 Mo. 283; Platte Co. Ct. v. McFarland, 12 Mo. 166; State v. Rombauer, 44 Mo. 590; State v. Knight, 46 Mo. 83; State v. Watson, 9 Kan. 668; Broom's Leg. Max. 909; 12 Wheat. 69; 1 Chitty Pl. (15 Am. Ed.) 221; Osage V. & S. K. R. R. v. Morgan Co. Ct., 53 Mo. 156.
Petition for mandamus to the county court of Audrain county. It seems that a new county road had been located through the premises of Strahan, and the damages assessed at $132.25, by a jury for that purpose empaneled, under the provisions of § 23, 2 Wag. Stat., p. 1222. At the term next succeeding the return of the verdict, the applicant for the writ herein, moved the county court for judgment on the verdict, but met with refusal, although that court had previously ordered that those who had petitioned for the road should pay all damages incident to its establishment. The issuance of the alternative writ was waived, and the petition was pleaded to as if the alternative writ. A demurrer was interposed questioning the sufficiency of the petition, in that it contained no allegation that the county court had ever ordered the road in question to be opened. The petition was held insufficient, and judgment accordingly; and the correctness of this ruling is to be measured by a consideration of the two sections which follow the one above noted:
Section 24. “If the amount of damages assessed by the jury aforesaid be the same, or less than the amount assessed by the commissioners, the person or persons objecting to the assessment of the commissioners, shall be adjudged to pay the costs, and if more, the costs shall all be paid by the county; and the damages assessed, and all costs incurred in behalf of the county, under this act, shall be paid either out of the county treasury or out of the road and canal fund, as the county court may direct, and shall draw their warrant for the same.”
Section 25. “Upon the report of the commissioners and the assessment of damages, as above provided, if the county court shall deem the road of sufficient...
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