Stutz v. Cameron

• Decision Date: 03 January 1914
• Citation: 254 Mo. 340,162 S.W. 221
• Parties: STUTZ et al. v. CAMERON et al.
• Court: Missouri Supreme Court

162 S.W. 221

254 Mo. 340

STUTZ et al. v. CAMERON et al.

Supreme Court of Missouri, Division No. 1.

January 3, 1914.

1. HIGHWAYS (§ 58) — QUESTIONS REVIEWABLE —EXCEPTIONS—RECORD.

Where, in the circuit court on appeal from an order of the county court establishing a road, the remonstrators moved to dismiss because the notices of the application were not posted long enough, and the record showed that the court heard evidence thereon, and at the close a similar motion was made and an exception was taken to the ruling, the court on appeal must determine the question whether the county court acquired jurisdiction.

2. HIGHWAYS (§ 30)—ESTABLISHMENT—NOTICE OF APPLICATION—JURISDICTION.

The giving of the notice required by Rev. St. 1909, § 10436, providing that notice of an application for the establishment of a highway shall be posted at least 20 days before the first day of the regular term of the county court at which the petition is presented, is jurisdictional, and the county court obtains no jurisdiction unless the notice has been posted for the statutory time, and the circuit court acquires no jurisdiction on appeal where the county court had none.

3. TIME (§ 8)—COMPUTATION—DAYS—POSTING OF NOTICES—SUFFICIENCY.

Under Rev. St. 1909, § 8057, providing that the time within which an act is to be done shall be computed by excluding the first day and including the last, and, if the last be Sunday, it shall be excluded, and section 10436, providing that the notice of an application for the establishment of a road shall be posted at least 20 days before the first day of the regular term of the county court at which the petition is presented, a notice posted October 17th, while the regular term commenced on Monday, November 7th, was posted long enough, since excluding October 17th, there would remain 14 days in October, so that there would be 20 days without counting November 7th, and since Sunday can only be excluded when it chances to be the last day on which the act could be

done, which in his case was the presentation of the petition on Monday.

4. APPEAL AND ERROR (§ 1082)—REVIEW—DECISION OF INTERMEDIATE COURT—QUESTIONS REVIEWABLE.

The Supreme Court on appeal from a judgment of the circuit court establishing a road, rendered on appeal from an order of the county court establishing the road, will not consider the question of the effect of the failure of the record of the county court to show that the commissioners of that court, appointed to view the premises and report, were sworn, since under Rev. St. 1909, § 10440, the trial in the circuit court is de novo before a jury in so far as the damages are concerned, and the Supreme Court will only review the acts of the circuit court including its act in assuming jurisdiction.

5. APPEAL AND ERROR (§ 1082)—REVIEW — DECISION OF INTERMEDIATE COURT.

The Supreme Court on appeal from a judgment of the circuit court establishing a road, rendered on appeal from an order of the county court establishing the road, will not discuss the question involving the jurisdiction of the county court on the ground that the report of the commissioners shows on its face that they did not assess the damages and benefits to each particular tract, for the action was at most erroneous and in no sense jurisdictional.

Appeal from Circuit Court, Clark County; Charles D. Stewart, Judge.

Proceedings by Conrad Stutz and others for the establishment of a road, against which John B. Cameron and another remonstrated. From a judgment in the circuit court, on appeal from the county court, establishing the road, the remonstrators appeal. Affirmed.

W. L. Berkheimer and Bert L. Gridley, both of Kahoka, for appellants. W. T. Rutherford, of Jefferson City, and T. L. Montgomery, of Kahoka, for respondents.

GRAVES, J.

This is a road case, originating in the county court of Clark county, Mo. The case was tried de novo in the circuit court of Clark county, and from a judgment there an appeal was taken to the St. Louis Court of Appeals, which court transferred it to this court, for the reason that title to real estate is involved. Counsel do not differ materially in their statements of the case, and we adopt that of the appellants, because it is just a trifle more concise. Where counsel differ will be pointed out, if necessary. Appellants thus state the case:

"On the 7th day of November, 1910, it being the first Monday in said month of November, 1910, and the first day of the regular term of the county court of Clark county, Mo., the respondents filed in said court a petition asking the said court to establish a public road as described in said petition in Jackson township in the said county. The petition was signed by more than 12 qualified freeholders of said township, 3 of whom resided in the immediate neighborhood of said road. On the same day, the appellants filed a remonstrance signed by more than 12 qualified remonstrators residing in the said municipal township, 3 of whom resided in the immediate neighborhood of said road. The respondents on the same day filed in said court a copy of the notice of the filing of said petition for said public road, which notice was dated the 17th day of October, 1910, and the return and the evidence shows that it was posted up on the said 17th day of October while the moon was shining after night of said 17th day of October, 1910, at three public places in said Jackson township, one of which was at the beginning and one at the termination of said proposed road. Upon the hearing of the issues made by said petition and remonstrance, the county court found for the petitioners and found the road of sufficient public utility and necessary to authorize the opening of said road. Said court also found that appellants, John B. Cameron and Marie Cameron, were the only persons who owned lands over which said proposed road would pass and allowed said John B. Cameron and Marie Cameron the sum of $100 and for damages done said lands on account of the opening and establishing said road. Said court at the time made an order ordering the county highway engineer to survey, mark out such road on the lines as stated in the petition, take the relinquishment of the right of way from all persons who would give the same, and report those persons who would not give the right of way and the damage claimed by any party through whose lands said road would run, and to make his report to said court at the next regular term of said court. At the next regular term of said court, it being held on the first Monday in February, 1911, said highway engineer made his report in writing, showing the beginning, courses, distances, and ending of said proposed road, together with the names of persons through whose lands said road would run and who would be affected by said road, the names of persons whose lands would be affected by said road, the names of persons who refused to relinquish the right of way for said road, and also showing that the said John B. Cameron and Marie Cameron were the only persons owning lands through which said road will pass, which report was in all things approved at the same term of court upon the report of said highway engineer being approved made an order appointing three commissioners to assess the damages done persons whose lands would be affected by the opening of said road and through whose lands said road would pass which commissioners were duly qualified and entered upon the discharge of their duties and assessed the damages done the said John B. Cameron and Marie Cameron jointly at the sum of $150 on account of the lands taken and damaged by the opening of said proposed road and, as ordered, made their report at the next regular term of said county court.

"On the first Monday in May, 1911, it being the first day of the regular term of said court, said commissioners made their report in writing to the said court as ordered by the court, and, as stated and reported to the said court, the amount of damages assessed to the said John B. Cameron and Marie Cameron jointly the said sum of $150 as damages assessed by them in favor of said John B. Cameron and Marie Cameron jointly on account of the opening of said road. At the same term of court, the appellants, John B. Cameron and Marie Cameron, filed their objections and exceptions to the report of said commissioners. Whereupon come a jury, and, after hearing the evidence and being advised, find that the said John B. Cameron and Marie Cameron jointly are damaged in the sum of $150, judgment opening the road and judgment in favor of John B. Cameron and Marie Cameron jointly for said sum of $150 as and for damages done them as aforesaid. Whereupon the said appellants, John B. Cameron and Marie Cameron, appealed from the judgment of the county court opening said road and from the judgment of said court in the assessment of damages done them on account of the opening and locating said road to the circuit court of Clark county, Mo. Which appeal was perfected and said cause was set for hearing at the October term, 1911, of the circuit court of Clark county, Mo. At the said October term of said court, in the trial of this cause the appellants, John B. Cameron and Marie Cameron, filed a motion to dismiss this cause for the reason the court had no jurisdiction of the same for the reason the notice of these proceedings were not posted not less than 20 days before the first day of the term of the county court to which said petition was presented, to wit, November 8, 1910. Which motion the court overruled, to which ruling the appellants at the time excepted. Whereupon, the issue presented to the court as to the utility and necessity of said public road being presented to the court, the court found for the petitioners respondents that the road was of public necessity and utility, and rendered judgment thereon ordering the opening of said road. Whereupon, the issue coming on to be heard upon the issue as to the amount of damages done...