Tetherow v. Grundy Cnty. Court
Decision Date | 31 January 1845 |
Citation | 9 Mo. 118 |
Parties | TETHEROW v. GRUNDY COUNTY COURT. |
Court | Missouri Supreme Court |
ERROR TO GRUNDY CIRCUIT COURT.
Commissioners were appointed by the General Assembly of this State, to select a seat of justice for Grundy county, under an act entitled, “An act for organizing Counties hereafter established,” approved December 9, 1836. In pursuance of the act, the commissioners appointed, made a selection, and reported their proceedings to the Circuit Court of Grundy county, on the 5th day of August, 1841, which was approved by the court. This report was dated 24th day of May, 1841. On the 20th day of June, 1841, a petition for the removal of the seat of justice thus selected, signed by the requisite number of taxable inhabitants, was presented to the County Court of Grundy county, under the act entitled, “An act to provide for the Removal of County Seats,” approved February 6th, 1835. This petition was dated May 19th, 1841, but recited that the county seat had been selected by the commissioners appointed by the General Assembly. The court thereupon in pursuance of the last recited act, appointed commissioners to locate permanently the seat of justice of Grundy county, who in conformity to law, selected a permanent seat of justice for said county and reported to the County Court on the 7th day of August, 1841. The Circuit Court also approved the proceedings of the last board of commissioners. On the 13th September, 1841, George Tetherow, a resident householder of Grundy county, moved the County Court of said county to rescind the order of the 20th day of June, 1841, appointing commissioners to locate the permanent seat of justice for said county, on the ground that at the time said order was entered, no seat of justice had been selected by the commissioners appointed by the General Assembly. This motion was overruled, and a writ of error was sued out from the Circuit Court to reverse the proceedings of the County Court; the Circuit Court affirmed the order of the County Court, and the cause is brought to this court by writ of error.
The first question that arises on the foregoing statement of facts, is whether a writ of error will lie or not? Is George Tetherow such a party as is entitled to the writ? Is this a civil suit within the meaning at the 20th section of the 4th article of the act regulating the Practice at Law, which allows either party to except to the opinion of the court, in any civil suit depending in any court of record; or is it within the 7th section of the last article of said act, which allows every person aggrieved by any final judgment or decision an appeal, or within the first three sections of the act entitled, “An act to regulate the Practice in the Supreme Court.” These statutes when construed in reference to the principles of the common law, as they must be, afford no support to the opinion that a writ of error can be sustained in this case. By the common law no person can bring a writ of error, unless he is party or privy to the record, or is prejudiced by the judgment, and therefore receives advantage by the reversal of it: the rule being, that a writ of error can only be brought by him who would have the thing, if the erroneous judgment had not been given. 2 Saunders, 46, a. If a judgment is obtained against a lessee for life, the...
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