Tummons v. Stokes

• Decision Date: 01 July 1925
• Docket Number: No. 3751.,3751.
• Parties: TUMMONS et al. v. STOCKES et al.
• Court: Missouri Court of Appeals

274 S.W. 528

TUMMONS et al. v. STOCKES et al.

No. 3751.

Springfield Court of Appeals. Missouri.

July 1, 1925.

Rehearing Denied July 27, 1925.

Appeal from Circuit Court, Polk County; C. H. Skinker, Judge.

Petition by G. L. Tummons and another to vacate a road, against which John R. Stokes and another filed remonstrance. From a judgment of the circuit court confirming an order of the county court granting the petition, remonstrators appeal. Reversed.

Herman Pufahl, of Bolivar, for appellants.

T. H. Douglass and L. Cunningham, both of Bolivar, for respondents.

BRADLEY, J.

We have styled this cause as it is styled on the abstract and briefs, but for convenience we will refer to the parties as petitioners and remonstrators.

G. L. Tummons et al. filed in the county court of Polk county a petition under section 10634, R. S. 1919, to vacate a portion of a public road. A remonstrance as provided in said section was filed against the vacation of said portion of road. The county court made an order vacating as asked for in the petition. From this order the remonstrators appealed to the circuit court, where an order was again made vacating the portion of the public road described in the petition. Remonstrators filed motion for a new trial, and said motion was overruled. Thereupon they filed an affidavit praying for an appeal, and the appeal was granted to this court.

Petitioners contend that no appeal lies from an order or judgment of the circuit court vacating a public road. Section 10623 et seq. R. S. 1919, prescribes the procedure for the establishment of a public road. Section 10629, R. 1919, as construed in Reynolds v. Potts (Mo. Sup.) 264 S. W. 663, provides for an appeal from the order of the county court establishing a road where commissioners have been appointed and have filed their report. Section 10629 further provides that, when a cause reaches the circuit court as provided therein, the judgment rendered in the circuit court "shall not be reviewed on appeal or by writ of error." The act of 1917 (Laws 1917, pp. 442 et seq.) wherein the road law was recast, did not make provision for an appeal from an order of the county court vacating a public road or part thereof, under section 12, Laws 1917, p. 449, now section 10634, R. S. 1919. But in 1921 (Laws 1921, p. 594) an act was passed specifically authorizing such appeal. In the act of 1921 it is provided that the same procedure shall be followed in taking the appeal from the county court to the circuit court as is provided in section 10629.

Remonstrators in effect say that, since no appeal will lie from a judgment or order of the circuit court establishing a road, that none will lie from an order or judgment of the circuit court vacating a road. While not so stated in the briefs, but we assume this contention is made on the theory that the Legislature by prohibiting review, by appeal or writ of error, of a judgment of the circuit court establishing a road, thereby established a policy to the effect that the circuit court is the final forum where petitions and orders affecting public roads may be delayed by litigation. Prior to the act of 1917, review by appeal or writ of error of a judgment of the circuit court establishing a road was not prohibited. See section 10440, R. S. 1909. The act of 1917 (section 7, Laws 1917, p. 448) retained the provision of the old statute (section 10440, R. S. 1909), allowing appeal to the circuit court from an order of the county court establishing a road, but made no specfic provision for appeal to the circuit court on orders vacating a road, and, as above stated, the act of 1917 was the first time that the prohibition of review by appeal or writ of error appeared, and this prohibition only went to the review of orders connected with the establishing of roads. When the act of 1921 (Laws 1921, p. 594) was passed, the Legislature had before it the act of 1917 (Laws 1917, p. 448; § 10629, R. S. 1919), and was restoring an omission from the act of 1917 allowing appeals from the county court to the circuit court on orders growing out of petitions to vacate public roads. With section 10629 under consideration, and aware of its provisions, the Legislature passed the act of 1921, and did not therein prohibit review by appeal or writ of error the action of the circuit court on petitions to vacate. In this situation we cannot say that the Legislature intended to prohibit the appeal at bar.

Since there is no statute specifically authorizing the appeal, and none prohibiting it, will the general statute pertaining to appeals support the appeal at bar? Section 1469, R. S. 1919, provides, among other things, that any party to a suit, aggrieved by any judgment of any circuit court in any civil cause from which an appeal is not prohibited by the Constitution, may take an appeal to a court having appellate jurisdiction from any final judgment in the case. There is nothing in the Constitution which prohibits the appeal now before us.

In Dahlin v. Missouri Commission for the Blind, 262 S. W. 420, we had under consideration the question of appeal where there was no specific statute authorizing and where there was no prohibition. What we said there is equally pertinent here. Discussing the point, we said:

"It may be conceded that the judgment appealed from is a final judgment, so that question is out of the way. This leaves two questions: (1) Is the cause at bar a `suit,' within the meaning of that term in the statute? and (2) Is the cause at bar a `civil cause,' as that term is used in the statute? Bouvier's Law Dictionary defines `suit' as a generic term of comprehensive signification, and applies to any proceeding in a court of justice in which the plaintiff pursued in such court the remedy which the law affords him for the redress" of an injury or the recovery of a right. In State ex rel. Gardner v. Hall, 282 Mo. 425, loc. cit. 431, 221 S. W. 708, the essential elements of a suit are given as (1) a moving; (2) an adverse party; and (3) the necessity of a decision determining the issue. We think...