Aldridge v. Spears

40 Mo. App. 527 | Mo. Ct. App. | 1889

Ellison, J.

This cause originated in the county court of Pettis county and arises on a petition for opening a new'road and tó vacate an old one. The petition was denied by the county court, and the petitioners appealed to the circuit court, where on a trial de novo the petition was granted as to the opening of- a new road, though no judgment appears in the record as to the vacation of the old road. A commissioner was appointed by the circuit court, and his report was approved by that court which, thereupon, with the aid of a jury, entered into a trial as to the damages to'those parties over whose land the proposed road ran who had not relinquished the right of way. The circuit court adjudged the road to be o£ sufficient public utility to justify the payment of the damages assessed. It ordered the road established, that the parties on its line give possession within six months and directed the road overseer to open the same at the expiration of that time. It - was further ordered that the county treasurer of Pettis county draw his warrant on the county of Pettis for the damages assessed as well as for the costs of the case.

Several questions relative to the sufficiency of the petition and the regularity of the proceedings have been presented, as also the further question of the right of the petitioners to appeal to the circuit court from the order disallowing the petition, since, if they had not the right, the circuit cQurt had no jurisdiction. The latter question will dispose of the case, and we will not notice the others. It will be noticed that the county court did not assess damages nor open or vacate the road, but refused the petition on the ground that the road was not of sufficient public utility to justify.its being opened. Under this state of facts the first point for consideration is, have the petitioners such an interest in the case as to carry with it the right of appeal from the judgment of the county court denying their petition ; that court, it may be remarked in passing, being so peculiarly adapted to the determination of such question. The action of the county court has not affected the petitioners. No property interests or rights of theirs have been interfered with or disturbed. They find themselves after the rejection of their petition in statu quo. The opening of a new public road is not for the special benefit of the petitioners nor have they any special interests or rights therein. Their interest is no more than any other like number of the general public whose agent the county court is, and for which it acts. Notwithstanding sections 1102, 1210 and 6967, Revised Statutes, 1879, concerning appeals from county courts, the appellant must yet have such personal interest in the proceedings, as distinguished from his interest in connection with the general public, as will give him an appealable interest. Foster v. Dunklin, 44 Mo. 216; Overbeck v. Galloway, 10 Mo. 364; Tetherow v. County Court, 9 Mo. 118. These cases all arose while the statute now found in the revision' of 1879 as section 1102 was in force. Under that statute appeals were allowed to parties held to be entitled thereto, but as no trial de novo was provided for, such appeal only operated as a certiorari. Now, by section 1210, provision is simply made for a trial anew on such appeals, thus covering the difficulty before experienced but in no wise adding additional rights of appeal. So that a party not allowed an appeal before the provision of the trial anew would still not be allowed, and the foregoing authorities are as much in point now as before the enactment of section 1210.

II. There is another view of the matter leading to the same result. Notwithstanding section 1102 gives the circuit courts appellate jurisdiction “from the judgments and orders of county courts * * * in all cases not expressly prohibited by law; ” and that section 1210 provides that, “in all cases of appeal from the final determination of any case in the county court,” there shall be a trial de novo, yet section 6967, Revised Statutes, 1879 (from which section 36, page 166, Laws 1883, is copied) provides that: “In all cases of appeals being allowed from the judgment of the county court, assessing damages, or for opening, changing or vacating any road, the circuit court shall be possessed of the cause and shall proceed to hear and determine the same anew ; but no commissioners shall be appointed by .the circuit court, nor shall any appeal prior to the determination thereof in the circuit court operate as a supersedeas of the proceedings in the county court.” Thus, this section of the road law permits appeals in certain specified cases ; the refusal of the petition for. a road not being one of them. By such enumeration of cases in which an appeal may be had the implication is clear that it is denied in other cases, even under section 1102, supra. Such was the ruling of the supreme court in a case quite applicable to this. Whitehead v. Stoddard County, 29 Mo. 138. All of the cases cited by respondent to which, we have had access are those falling directly under the provisions of the statute, section 6967, above quoted, and were not where the petition had been merely denied.

III. There is yet another reason which would lead to a denial of an appeal in this case. In the determination of a petition for a road, that is, whether a road is of sufficient public utility to require its opening and the payment of damages, the county court does not act in a judicial capacity. The refusal of the petition is not a judgment. It could not be said to be res adjudieata. There is nothing in the order of refusal which would prevent another petition for the same thing. It is true that if a petition was granted and afterwards land-owners would refuse the right of way and claim damages, the subsequent proceedings would perhaps become judicial in their character. But, so far as concerns the necessity of a public road, a county court is but the agent for the public. It has been held to be a mere agent in allowing accounts (Reppy v. Jefferson County, 47 Mo. 66; Phelps County v. Bishop, 46 Mo. 68); in locating county seats (Iron M. Ry. Co. v. City of St. Louis, 92 Mo. 160; State ex rel. West v. County Court, 41 Mo. 44); in handling school funds (Ray County v. Bently, 49 Mo. 236); road funds (Pettis County v. Kingsbury, 17 Mo. 479); as well as in granting right of way over streets (The St. Louis, Iron M. Ry. Co. v. City of St. Louis, 92 Mo. 160). In the latter case it is held that, notwithstanding the sections of the statute herein referred to, an “appeal can only be taken when the judgment or order appealed from is judicial.” Unless, of course, it be specially and directly provided for. We find the foregoing is in direct conflict with the case of Cox v. Dake, 34 Mo. App. 80, from the St. Louis Court of Appeals, and we will, therefore, certify this cause to the supreme court for final determination.

All concur.