Summers v. Cordell

• Decision Date: 02 June 1916
• Docket Number: No. 17953.,17953.
• Citation: 187 S.W. 5
• Parties: SUMMERS et al. v. CORDELL et al.
• Court: Missouri Supreme Court

187 S.W. 5

SUMMERS et al. v. CORDELL et al.

No. 17953.

Supreme Court of Missouri, Division No. 1.

June 2, 1916.

Appeal from Circuit Court, Howell County; W. N. Evans, Judge.

Application by John Summers and others against W. C. Cordell and others to restrain the opening of a public road. From a judgment dissolving a temporary injunction, plaintiffs appeal. Affirmed.

On December 4, 1911, appellants filed a petition for injunction against respondents, Cordell, Vaughn, and Bellew, as judges of the county court of Howell county aforesaid, and Offield, as road overseer, alleging therein that said county court had entered of record an order establishing a new public road in Spring Creek township (describing same), and requiring Offield, as road overseer, to open said road at the expiration of 100 days from the date of said order; that plaintiffs are landowners along the proposed new public road; that they each refuse to give the right of way for said road; that said Offield, as overseer, is threatening to open said road, and is about to proceed to open same, and will, if not prevented by order of the court, proceed immediately to open said road, to tear down the fences of plaintiffs and move the same back a sufficient distance to acquire land for said road, and will appropriate the lands of plaintiffs for such purpose. It is then alleged in petition that the order of the county court aforesaid is void, and five different grounds are set forth therein in support of said contention. The petition concludes with a prayer for injunctive relief.

Defendants answered, and admitted therein that they are officers as charged in petition, and that they are proceeding to open said road under a valid order of the county court. They deny each and every other allegation of petition.

Upon a hearing before the trial judge the latter dismissed plaintiffs' bill, dissolved the injunction theretofore issued, and in due form entered judgment for defendants. Plaintiffs filed a motion for a new trial, and also a motion in arrest of judgment. Both motions were overruled, and the case appealed to the Springfield Court of Appeals. It appearing from the record that the title to real estate is involved, the case was properly transferred by the Court of Appeals to this court. The facts disclosed by the record, as far as necessary, will be considered in the opinion to follow.

J. N. Burroughs, of West Plains, for appellants.

RAILEY, C. (after stating the facts as above).

I. Rule 15 of this court (169 S. W. ix) provides that:

"All briefs shall be printed and shall contain separate and apart from the argument or discussion of authorities, a statement, in numerical order, of the points relied on, together with a citation of authorities appropriate under each point. And any brief failing to comply with this rule may be disregarded by the court.

"The brief filed by appellant shall distinctly and separately allege the errors committed by the inferior court, and no reference will be permitted at the argument to the errors not thus specified, unless for good cause shown the court shall otherwise direct."

Appellants' brief does not come up to the requirements of the above rule. The "points and authorities" do not contain any reference to the pages of the record where the testimony can be found, nor is there any attempt to apply the authorities cited to any particular part of the record. The points and authorities simply contain statements of abstract propositions of law, without the slightest reference to the record. They should contain a brief statement of the facts relating to each proposition presented, with the page of the record where the testimony can be found, and by appropriate language apply the authorities cited to the points we are called upon to consider. A compliance with the above suggestions would relieve the court, in many cases, of a vast amount of labor in searching the record for the testimony in order that we may consider the same in the light of the authorities cited and relied upon by counsel.

II. It is contended by appellants that:

"The petition to the county court was void, for the reason that it did not give the names of these appellants as landowners to be affected by said road, nor the damages claimed by them."

Section 10435, R. S. 1909, relates to the establishment of new roads, and, among other things, provides that:

"Said petition shall be accompanied by the names of all resident persons owning land through which said proposed road or change or relocation of road shall run, with the amount of damages claimed by them, so far as can be ascertained, and also the names of those who are willing to give the right of way for said proposed road or change of road."

The petition presented to the county court, among other things, contains the following:

"And we further aver that said new public road is entirely practicable and a public necessity. And we further aver that said public road is, whenever practicable, along government surveys, and that this petition is accompanied by the names of all resident and other persons owning land through which said public road shall run, with the amounts of damages claimed by each of them so far as can be ascertained, and also by the names of all those who are willing to give the right of way for said proposed public road."

It will be observed from comparing the petition with the requirements of section 10435, supra, that it follows the language of the statute.

In Halter v. Leonard, 223 Mo. loc. cit. 292, 122 S. W. 708, Judge Gantt, speaking for Division No. 2, said:

"There is no warrant in the statute for the contention that the petition itself should contain these names. Full and complete jurisdiction was conferred upon the county court to pass upon the sufficiency of this petition, and to find as a matter of fact that it was accompanied by the list of landowners as provided by the statutes. As said in Baubie v. Ossman, 142 Mo. loc. cit. 505 : `The county court having the exclusive jurisdiction for the laying out and opening public roads, and having acquired jurisdiction in this particular case by the notice and petition, its findings and judgment are not open to collateral attack, and its judgment is entitled to every presumption in its favor. Lingo v. Burford, 112 Mo. 149 ; Snoddy v. Pettis County, 45 Mo. 361; Rose v. Kansas City, 128 Mo. 135 '"

There is no testimony in the record before us tending to show that the above allegation of petition in reference to names of property owners, etc., having accompanied said petition, was not true. Plaintiffs offered in evidence the record of the county court, which reads as follows:

"Now, the above cause coming on again to be heard, and the county highway engineer and ex officio road commissioner has filed herein his report, from which said report it appears that Thurman Tabor, John Tabor, John Summers, W. C. Edmonds, J. W. Fox, J. C. D. Davis, J. F. M. Dooley, N. T. Edmonds, J. W. Lorance, and J. L. Calloway have failed or refused to relinquish the right of way for said road: It is therefore ordered by the court that Arch Davidson, John T. Richardson, and W. C. Hocutt be, and they are hereby, appointed to act as commissioners," to assess the damages, etc.

Section 10438, R. S. 1909, reads as follows:

"But if it appear that any person or persons through whose lands such proposed road * * * should run have failed or refused to relinquish the right of way, and are not willing to take the amount of damages offered them by the court or petitioners, * * * the county court shall appoint, by order of record, three disinterested freeholders, of the county," etc., to assess the damages.

In addition to the foregoing, the county court, in its final order establishing said road, affirmatively set out the above matters, and recites therein the names of those in whose favor damages had been assessed by the commissioners, as well as the amount allowed each. It recites the names of those to whom no damages were allowed. It also recites that the damages allowed by said commissioners were paid into court. In addition to the foregoing, the petition for injunction herein contains the following:

"Plaintiffs further state that they each and all own land along the proposed new public road; that they each refuse to give the right of way for said road."

In the proceedings before the county court the petition for the road was in proper form. It contained the requisite number of qualified petitioners, and literally complied with the terms and provisions of section 10435, R. S. 1909. Due notice was given as required by section 10436, R. S. 1909. The county court affirmatively found and entered of record that the requirements of said sections 10435 and 10436 had been complied with. Keeping in mind that this is a collateral attack upon the proceedings of the county court, in respect to a matter over which it had exclusive original jurisdiction, and there being nothing in the record tending to controvert the allegations of petition in respect to said matters, it is clear that the foregoing contention of plaintiffs is not sustained by the record.

III. It is insisted by plaintiffs that there is nothing in the record which "shows a finding by the court as to the probable amount of damages accruing to landowners and other expenses attending the opening of the road or any order requiring payment of the same by petitioners." The record of the county court, introduced by plaintiffs, recites, that:

"Commissioners' report accepted and damages' paid in, and road ordered open, all parties have 100 days to move fences from August 17, 1911."

It also appears from the final judgment of the county court that the damages assessed in favor of plaintiffs were paid into court. The county court having acquired full jurisdiction over the subject-matter, and the...