27 Mo. 317 | Mo. | 1858
delivered the opinion of the court.
These two cases were before this court on writs of error, (20 Mo. 70,) and it was held that the writs of error would not lie in such cases, and the writs were therefore dismissed. The records are now before the court on certiorari.
We have no statute here regulating writs of certiorari, nor has this court, so far as we are aware, given any construction to the constitutional provision which authorizes this court to issue the writ. It is not deemed necessary to undertake in this case to determine the exact class or classes of
The first is, that the record does not show that the oath prescribed by the statute was taken by the viewex-s. The report of the viewers to the court states that the viewers, before proceeding to examine the land and assess the damages, took the oath prescribed by the statute, but the form of the oath is not copied in the report. As no objection was made by the owners of the land to the report on this ground, we must presume that the oath was in proper form and duly administered; for so the record states, and there is nothing to contradict it. If we require that every minute particular, which
It is next objected that it does not appear that the viewers appointed to condemn this land were citizens of the county of Marion. ' The statute requires the court to appoint” citizens of the county, and the record is silent on this subject. We think there is nothing in this objection. Our statute concerning jurors requires them to be “ free white citizens of the state, resident in the county, sober and judicious, of good reputation,” &c. Would this court reverse a judgment because the record of a trial did not show affirmatively that the jury which tried the case was composed of this class of citizens ?
The third objection is, that the notice given in the first instance was only nine days, when the law required it to be ten. This is true of the first notice; but the first assessment was set aside and another set of viewers appointed; and in relation to the second assessment no objection on the ground of notice is made or could have been made, as it seems upon the record to have been legal. The objection to the first notice may be considered as waived, and whether waived or not, it can not affect the propriety or legality of the ultimate assessment which the judge mentioned.
The next objection is, ‘ that the proceeding was instituted in the name of Joshua Gentry, who described himself as agent of the company, and not in the name of the Hannibal and St. Joseph Railroad Company. This objection, in point of fact, only applies to one of the cases ; for, on examining the record in the case of David Morton, the proceeding appears
But the principal objection to these proceedings, and the one chiefly relied oír, is, that the road had in fact been constructed over the plaintiff’s land before the proceedings were instituted, and the proceeding authorized by the statute must precede the occupation of the land. If we confine the office of a certiorari, as it is in England, to such cases as are within the jurisdiction of the inferior tribunal whose proceedings are to be reviewed, this objection, if true in fact, would only show that the writ should be dismissed and the party remitted to his action of trespass. But if we adopt what seems to be the practice of the American courts and allow the writ in such cases, the answer to the objection is, that the fact nowhere appears on the record. The writs of error formerly made out in these cases were dismissed, as it appears from the opinion of the court (20 Mo. 74), because the proceedings were before the judge and not proceedings in court. This being so, it is clear that a bill of exceptions could not be taken, for our statutes nowhere make provision for bills of exception in such cases. But the bill of exceptions in this case does not materially differ from the record proper, and there is nothing to show in either that in point of fact the railroad had been constructed before the proceeding was commenced. It is true that on the last motion to set aside the second report this is alleged to have been the fact, and it is so stated as one of the reasons for a new trial; but non constat that the court may not have overruled the motion for the very reason that the fact was not as alleged. The petition on which one of these proceedings is based was in these words: “ J. G-., agent for said company, comes and gives notice to the judge of this court that said company wish to run their road through the N.W. ¼ of section 35, &c., of which said defendant is the owner,” &c., and prays “the appointment of viewers to examine and view said land and assess the damages thereof, and thereupon,” &c. In the case
It is quite manifest from the whole record in these cases that the substantial and real grounds of objections were in both cases the supposed inadequacy of the damages allowed by the commissioners appointed by the court. Whether this was so or not, or upon what grounds the viewers acted, we have no means of knowing, and, if we had, could furnish no redress. Two sets of viewers, intelligent and impartial citizens, no doubt, of the county, and fully acquainted with all the facts which deserved consideration in forming a judgment, have passed upon the question of damages, and there is no power in this court to correct any erroneous opinion they may have entertained or acted on, if such error has in truth existed.
There is therefore no ground appearing upon the record