Thomas v. Craghead

• Decision Date: 06 January 1930
• Docket Number: 16594
• Citation: 22 S.W.2d 1057
• Parties: THOMAS et al. v. CRAGHEAD.
• Court: Kansas Court of Appeals

22 S.W.2d 1057

THOMAS et al. v. CRAGHEAD.

No. 16594

Court of Appeals of Missouri, Kansas City

January 6, 1930

Appeal from Circuit Court, Callaway County; D. H. Harris, Judge.

“ Not to be officially reported.”

Proceeding by Ida L. Thomas and others for establishment of a public road. From an order refusing to set aside a judgment establishing the road, Gus Craghead appeals. Transferred to the Supreme Court.

Irwin & Bushman, of Jefferson City, for appellant.

Baker & Baker, of Fulton, for respondents.

OPINION

BARNETT, C.

This is an appeal from an order after final judgment refusing to set aside a judgment establishing a public road. The application for the road was first filed in the county court of Callaway county, and in due time the proceedings were transferred by appeal to the circuit court, where a trial was had de novo. The circuit court entered a judgment establishing the public road, and thereafter sustained a motion for new trial. After the new trial had been granted the circuit court again entered judgment establishing the road, which judgment purported to be entered by consent. Gus Craghead, one of the landowners through whose land the public road would run, then filed a motion praying that the judgment be set aside and the cause reinstated for trial and the judgment be modified in so far as it affected him and his land, and in said motion it was alleged that in truth and fact neither the petitioner nor his attorney consented to the judgment, nor had any knowledge of the agreement for judgment. Evidence was taken, and the motion to vacate the judgment was overruled. The petitioner appealed. Appellant makes the contention that the court erred in overruling the petition to set aside the judgment, and that "the court erred in rendering judgment for a road located at a place other than that petitioned for an other than that ordered by the county court, as the circuit court had only appellate jurisdiction, and the order of the circuit court opening a road different from that petitioned for and ordered open by the county court was not within the jurisdiction of the circuit court."

Opinion.

We think that this is a case involving title to real estate within the meaning of the constitutional provision fixing the jurisdiction of this court. The mere fact that this is a condemnation proceeding does not necessarily vest the jurisdiction of the appeal in the Supreme Court; because in condemnation proceedings the right to take the land for public use may not be disputed, but the whole dispute may be on a matter which does not directly affect the title to real estate. State ex rel. Cornelius v. McClanahan et al. (Mo Sup.) 273 S.W. 1059; State ex rel. State Highway Commission v. Wright (Mo. App.) 11 S.W.2d 66. On the other hand, if it is claimed that the court had no right to establish the public road at all, then the title to real estate is directly involved. Stutz...