27 Mo. App. 321 | Mo. Ct. App. | 1887
This proceeding originated in the county court for the opening of a new road. It was subject to the provisions of the road law enacted in 1883. Laws Mo. 1883, p. 158. The record shows, if not an irregular course of procedure, at least, a most unusual one.
The petition was presented to the county court at the November term, 1884, when the court made an order that the road commissioner proceed to survey and mark out said road, and make report to the court thereof according to law. At the following term, February,, 1885, the commissioner made report, representing that H. Besgrove and B. F. Johnson, through whose land the proposed road would run, refused to relinquish the-right of way; the court appointed commissioners to-assess the damages, and make report. At the following-May term the commissioners filed their report, and the-court made a provisional order that the road be established when the petitioners paid into court the damages awarded to the non-assenting land owners. At the following August term the court made an order, reciting the payment of the damages, assessed as aforesaid, and ordered the road overseer to notify all persons to remove their fences in the way of the' road. The year following,, on the nineteenth day of July, 1886, the record shows-that J. A. Bryan and James B. Davis, the appellant herein, through whose land the proposed road ran, had not relinquished the right of way.
The court thereupon appointed certain other commissioners to view the premises and assess the damages, and make report. At the August term following the commissioners filed their report, and the said Bryan and Davis failing to make any objection thereto, the court ordered the road opened within thirty days ; and Bryan and Davis were ordered to remove their fences from the-
Davis appealed to the circuit court, where he filed a motion to dismiss the proceedings, on the grounds that the county court had no jurisdiction to make the order appealed from; that it did not appear, from the petition or the record of the county court, that the petition for the establishment of the road was signed by at least twelve freeholders of the municipal township or townships through which said road runs, three of whom are of the immediate neighborhood of said proposed road; nor did it appear, from the record, of the county court, that the required statutory notice had'been given.
Pending this motion, the petitioners were permitted by the circuit court, over the objection of the appellant, to amend the petition, so as to show that at least three of the petitioners were freeholders resident in the township, and resided in the immediate vicinity of the road. On the hearing of the cause, the petitioners made proof, against the objection of appellant, that the signers of the petition were resident freeholders, as required by the statute, and that the requisite statutory notice of the intended application to the county court for the opening of the road was given. The petitioners also read in evidence the report of the road commissioner, and accompanying plat. The motion to dismiss was overruled, and Davis has appealed to this court.
I. It is not necessary to the determination of this case that we should pass upon the question raised, and pressed upon our consideration by appellant, as to the right of the petitioners to amend the petition in the circuit court, as we are of opinion such amendment was not essential to validate the petition. We do not think the statute authorizes the construction that the petition itself should contain the averment as to the necessary residence of the petitioners. The statute simply prescribes that the petition shall be “signed by at least
II. But as the requirement as to the residence of the petitioners is in the nature of a jurisdictional fact, which must be found by the county court before it can proceed to take jurisdiction over the subject-matter, the record of that court should show affirmatively that the petitioners possessed the necessary qualification, without which its further proceeding is an absolute nullity. Jefferson County v. Cowan, 54 Mo. 234; Colville v. Judy, 73 Mo. 651; Whitely v. Platte County, 73 Mo. 30; Zimmerman v. Snowden, 88 Mo. 218; Blize v. Castlio, 8 Mo. App. 290. This fact the county court record failed to recite.
III. The fact of having given the required notice of intention to present the petition should also be found and appear of record in the county court.
IV. • The only remaining question, of importance to the determination of this case, is, did the circuit court acquire such jurisdiction by the appeal as to authorize it to proceed, de nono, to hear the case on its merits, and find the essential facts, disregarding these errors in the record of the county court %
I am free to say that if this question were res nona, and its determination should rest with me, I should hold that such defect in the proceedings of the lower court would not oust the circuit court of its jurisdiction on direct appeal, where it was made to appear on the trial de nono that the essential fact did exist, and it was an omission on the part of the- lower court to recite it in
It results that the motion of appellant to dismiss the proceedings should have been sustained. The judgment of the circuit court is, therefore, reversed, and the cause remanded, with directions to proceed conformably to. this opinion.