41 Mo. App. 589 | Mo. Ct. App. | 1890
This was a proceeding in the county court of Marion county to open a public road. An appeal was taken to the circuit court where the appellants filed a motion to quash the proceedings, which motion the court overruled. . This motion, and the ruling of the court thereon, are shown by a bill of exceptions. The court tried the cause without a jury, and rendered final judgment therein. No motion for new trial and no motion in arrest of judgment were filed. The cause is now brought to this court by a writ of error, and the error assigned is the overruling of the motion to quash the proceedings.
Although the bill of exceptions recites this motion, and shows that the court overruled it, and that the plaintiffs in error excepted to the ruling; yet, as they did not renew their exceptions in a motion for a new trial, they are lost. Bevin v. Powell, 11 Mo. App. 216, and cases cited; Lionberger v. Baker, 14 Mo. App. 358, 357; Rankin v. Lawton, 17 Mo. App. 574; McLaughlin v. Schawacker, 31 Mo. App. 875; McCullom v. Hedges, 20 Mo. App. 688; Mockler v. Skellett, 36 Mo. App. 174; Gruen v. Bamberger, 25 Mo. App. 89.
We cannot, in such a case, look beyond what appears on the face of the record proper. The motion to quash and .the rulings thereon are no part of such record, but are matters of exception within the rule of the cases above cited. This has been often held in respect of motions to quash indictments. State v. Fortune, 10 Mo. 313; State v. Batchelor, 15 Mo. 207; State v. Wall, 15 Mo. 208; State v. Gee, 79 Mo. 313. The reason given by the supreme court is that indictments may sometimes be quashed for matters not appearing on
But, while the motion to quash in itself raises no question which we can consider, it is competent for the plaintiff in error to assign for error, upon the record proper, that the county court had no jurisdiction. State v. Laurence, 45 Mo. 492; Ellis v. Railroad, 51 Mo. 203; Rogers v. City of St. Charles, 3 Mo. App. 41; Kansas City, etc., Railroad v. Campbell, 62 Mo. 588. As the printed argument of the appellant is chiefly directed to jurisdictional questions we shall treat it as an assignment of error, on the record proper, that the county court had no jurisdiction.
But, in dealing with this > question, it must be remembered that this is not a certiorari, the object of which is to quash the proceedings and judgment of the county court, but that it is a statutory appeal, in which the circuit court proceeds to hear and determine the controversy anew, with the single exception that it cannot appoint a new commissioner ( Laws of 1887, p. 248), which we understand to mean that the circuit court cannot direct a resurvey of the road, but that the proceedings prescribed by the seventh section of the statute to be taken by the road commissioner in surveying the road, taking the relinquishments of land-owners, etc., must be taken in substantial compliance with the statute, in order to give the circuit court jurisdiction to proceed. If, therefore, the county court had what we may'term initial jurisdiction, that is, jurisdiction to hear and determine the petition for the establishment of the road, and if the road commissioner proceeded in substantial conformity with the statute in taking the relinquishments of land-owners, etc., the circuit court had jurisdiction to hear and determine it de novo. The
I. The first of these points is that the court erred in overruling the motion to quash the proceedings, because the proposed road is not a public necessity. It seems to be a sufficient answer to this to say thawhether the proposed road was a public necessity was a question which, by the terms of the statute (Laws of 1887, sec. 7, p. 247), the county court was required to
II. The same observations may be made upon the point made in argument by the counsel for the plaintiffs in error that the width of the proposed road was not fixed by the county court, as required by the statute, but was left to be fixed by the county surveyor acting as road commissioner. This point does not seem to be borne out by the record, when the orders of the county court are read together. It is to be collected from the report of the surveyor, which shows that he laid out a road sixty feet wide, from the order of the county court directing commissioners to assess damages for a strip of land sixty feet wide, from the report of the commissioners, which shows that damages were assessed for the taking of a strip of land sixty feet wide, and from the order of the county court establishing "said road,” that the road, which was established was a road sixty feet wide.
Nor is it a sound argument that the omission of the petition to state the width of the proposed road is the omission of the statement of a jurisdictional fact, because section 5 of the act, which prescribes what the petition shall state, provides merely that it shall specify “the proposed beginning, course and termination” of
III. The fourth point made by the plaintiffs in error in their argument is, that neither the record nor the report of the road commissioner shows that any attempt was made to agree with the plaintiffs in error as to the amount of damages or compensation to be paid them for their lands, etc. We find no provision in the statute authorizing the road commissioner to-endeavor to agree with the land-owners as to the amount of compensation which they shall receive. The seventh section of the statute (Laws of 3887, p. 247) authorizes him to take the relinquishment of the right of way of all persons, who may give such, and to state in his report the names of those who fail or refuse to give the right of way, and the amount which they demand therefor, etc. It was held in Chicago, etc., Ry. Co. v. Young, 96 Mo. 39, 43, that it is only upon failure of a land-owner or land-owners to relinquish, as provided for in section 6938 of the Revised Statutes of 1879, which was similar in its terms to the eighth section of the act of 1887, that the county court has any authority to appoint three freeholders to view the premises and assess the damages ; and the court said that the failure of the owner to relinquish was a jurisdictional fact. Applying this principle to the record before us, we are of opinion that the commissioners’ report, as-recited in the record of the county court, sufficiently shows .the facts required by the statute. It appears from those recitals that ‘ ‘ all persons have relinquished the right of way for said road, except the heirs of the John Taylor estate, viz.: William J. Taylor, Frank Sherman and Dr. D. W. Tindall, and that said heirs of said estate, viz.: William J. Taylor, Frank Sherman and Dr. D. W. Tindall, through whose lands said proposed road shall run, still refuse to relinquish the right of way for the same.” The order of the court then proceeds to appoint commissioners to view the premises and
IV. The second and seventh points made in argument by the counsel for the plaintiffs in error present less difficulty, and will be considered together. These are: First. That the record of the county court, originally sent up to the circuit court, did not show that a notice had been given of the application to the county court for the proposed road, as required by section 6 of the act of 1887, and, second, that this defect in the record of the county court could not be supplied by amending its record nunc pro tunc, while the appeal was pending in the circuit court. The record of the county court, as originally sent up to the circuit court, contained a recital running in this language : “And it being proven to the satisfaction of the court that due legal notice has been given of the intended application to this court for said road.” In the circuit court the appellees moved for a certiorari to the county court to send up a more perfect record, which order was granted. The county court, in obedience to the certiorari, returned an amended record, the recitals of which showed that, after the appeal had been taken from the county court to the circuit court, the petitioners for the proposed road appeared in the county court, and moved to have the court make certain amendments of its record in respect of the proposed road, nunc pro tunc, a portion of which amendments the court ordered to be made, and another portion of which the court refused, reciting the following reason: “There being no mark, minute or memorandum among the records of said court to authorize the other entries prayed for in said motion.” Among the amendments thus made was one showing the manner in which the notice of the application for the proposed road had been given. The statement of the manner in which the notice had been given was prefixed with the recital: ‘ ‘ There being sufficient memorandum on the minutes and record of the court to show the
The record returned by the county court, in obedience to the certiorari, also showed that the motion to amend its record nunc pro tunc was sustained ‘ ‘ in this, to-wit: H. J. Drummond, attorney for the contestants Daniel W. Tindall, William J. Taylor and Frank Sherman, appearing and admitting the fact that the said contestants, in their own proper persons, as well as by attorney, did appear in court at the time of the filing of the petition and notice, and objected to the establishment of said road and to any action by the court thereon, it is, therefore, ordered and adjudged that, immediately after the word ‘petition’ in the fourth line of the record of the proceedings in said case, on page 107, of book O, of the county court record, the following be inserted nunc pro tunc: ‘ Also come Daniel W. Tindall, William J. Taylor and Frank Sherman in their own proper person, as well as by their attorney, H. J. Drummond.’ ”
The record does not disclose the fact that any exception was taken to the order of the circuit court in
We have, therefore, to consider whether we are precluded from considering so much of the record of the county court as is shown by that record itself, as returned in obedience to the certiorari of the circuit court, to have been made by amendments nunc pro tunc after the lapse of the term at which the original record was made. The proposition of the plaintiffs in error on this point is that, after the lapse of its term, the county court had no power to amend its record. It was held by this court in Blize v. Castlio, 8 Mo. App. 290, in a well-considered opinion by Judge Bakewell, that the county court in a proceeding under a road law (in that case the act of 1877, page 393), to open a new road, cannot, after the lapse of the term, correct its record by a nunc pro tunc entry, so as to show jurisdictional facts, without some memorandum, entry or paper in the case to amend by. This, as shown by the citations in the opinion, and by many decisions of the supreme, court and of this court before and since, is also the rule in regard to the amendment of the records of the circuit court. This rule is undoubtedly sound, but it does not apply to the present case; for here it
Next, as to the sufficiency of the record, as amended, on the jurisdictional point of notice. Our successive road laws appear to have been substantially the same, in so far as containing a provision requiring notice of the intended petition for a road to be posted in a certain manner. In Blize v. Castlio, supra, the jurisdiction of the county court was challenged on the ground that the record did not show a petition stating the necessary jurisdictional facts, but it was not challenged on the ground that it did not show that notice had been given in the prescribed manner. There, the recital was, as in the original record before us: “And it being proven to the satisfaction of the court that due legal notice has been given of the intended application to this court for such road.” In Daugherty v. Brown, 91 Mo. 26, the proceeding was to enjoin the establishment of the proposed road on the ground of want of jurisdiction, and the jurisdiction was challenged on the ground, among others, that it did not appear that notice had been given in compliance with section 6936 of the Revised Statutes of 1879. The record of the county court recited, as did the original petition in this case, “that it had been proved, to the satisfaction of the
Then as to so much of the amended record above set out as recited the fact of the appearance of the remonstrants (plaintiffs in error) in the county court
We are, therefore, of opinion that the judgment of the circuit court ought to be affirmed. It is so ordered.