Sutherland v. Holmes
| Decision Date | 31 October 1883 |
| Citation | 78 Mo. 399 |
| Parties | SUTHERLAND v. HOLMES, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Johnson Circuit Court.--HON. NOAH M. GIVAN, Judge.
AFFIRMED.
S. P. Sparks and W. W. Wood for appellant.
F. C. Farr for respondents.
This is a proceeding instituted by the respondents, D. L. Sutherland and others in the county court of Johnson county, for opening a new road in said county. The appellant, Rufus E. Holmes, through whose land the proposed road would run, filed objections claiming damages, as by statute in such cases provided. He had a hearing in the county court on the issues thus made. From the judgment of the county court he appealed to the circuit court, where his damages were re-assessed, and the order of the county court directing the road to be opened was affirmed. From this judgment Holmes brings the case to this court on appeal. The objector assigns various errors, assailing the proceedings of the lower court for alleged irregularities as well as for lack of jurisdiction. These objections will be considered in their order.
I. It is claimed that the petition for the road does not show that the proposed road is in Johnson county. We think sufficient appears, taking the whole petition together, to indicate that the road lay in Johnson county. The petition is addressed “to the county court of Johnson county, Missouri.” The location and direction of the road are given, with the sections, townships and range, and the names of persons and farms touched by it, as also its intersection with other known public highways in the county. These were certain to a common intent, and such as would leave no reasonable mind in doubt as to the situs. Long v. Wagoner, 47 Mo. 178; Howe v. Williams, 51 Mo. 252; Norfleet v. Russell, 64 Mo. 176
II. It is objected that the preliminary notice of the intended application for this road was insufficient. It appears that copies of the petition itself were put up, whereas the statute, (§ 7, p. 395, Laws of 1877,) then applicable to the case, provided for notice “by printed or written handbills.” The petition, a copy of which was put up, showed that it was addressed to the county court of said county at the “November term, 1878.” Surely appellant ought not to complain that the petition itself was put up displaying to every one interested the exact line of the road, the names of all the petitioners and the lands touched. As the object of the notice was to afford to interested parties an opportunity to be present at court, and as this objector did attend the court on the notice, the statutory object in requiring notice was subserved, so far as the appellant is concerned.
III. Error is alleged on account of the imputed action of the circuit court, in permitting one of the commissioners sent out by the county court to view the line of road and assess damages, to testify as to the manner in which he arrived at this conclusion. It is enough to say that the bill of exceptions does not sustain this objection on the matter of fact. The witness, Caldwell, did not state the manner in which the commissioners arrived at their verdict. He merely stated that no one was present at their view, and they examined no witnesses.
IV. Complaint is also made that the trial court erred in permitting petitioners to read in evidence on the hearing in the circuit court the report of the commissioners in the county court. A sufficient answer to this is, that the bill of exception recites: “It is agreed that the transcript of the trial of this cause in the county court, and the original papers, shall be considered in evidence.” No objection was then made nor was any exception thereto taken at the time.
V. It is suggested for error that the commissioners did not take the oath of duty prior to entering upon their office. The act of 1877, under which they were acting, did not prescribe any oath. But even if section 18 of the Road Law, (Wag. Stat.,) was not repealed, we are not prepared to say that the requirement of this oath involved any jurisdictional question. Be that as it may, the fact appears that the commissioners did make oath to the report before it was acted on, declaring that they had “honestly, faithfully and impartially discharged the duty devolving upon us by virtue of said...
To continue reading
Request your trial
-
Leonard v. Sparks
...the record in the mayor's court to recite the competency of the jurors would not oust the jurisdiction of the appellate court. Sutherlin v. Holmes, 78 Mo. 399; Eminent Domain, sec. 251. D. D. Duggins for defendant in error. (1) Edward H. Bouton was entitled to six days' notice. He only had ......
-
City of Tarkio v. Clark
...fact and its absence fatal to the proceedings. [Fore v. Hoke, 48 Mo.App. 254, and cases cited; Jones v. Zink, 65 Mo.App. 409; Sutherland v. Holmes, 78 Mo. 399.] Second, the five days' notice provided by section 5993, and which performs the office of a summons and gives those interested thei......
-
City of Tarkio v. Clark
...absence fatal to the proceedings. Fore et al. v. Hoke et al., 48 Mo. App. 254, and cases cited; Jones v. Zink, 65 Mo. App. 409; Sutherland v. Holmes, 78 Mo. 399. Second. The five-days notice provided by section 5993, and which performs the office of a summons, and gives those interested the......
-
Beck v. Biggers
...was sufficient in this case. 22 S.W. 82; 37 S.W. 872; 30 S.W. 518; 67 Wis. 285; 73 Ind. 454; 114 Pa.St. 627; 78 Me. 153; 45 N.Y. 332; 78 Mo. 399; 94 187; 95 Ind. 53; 9 Am. & Eng. Enc. Law, 370, 371. OPINION BUNN, C. J. This is an appeal from the Sharp county circuit court, upon a judgment t......