130 Ky. 18 | Ky. Ct. App. | 1908
Opinion of the Court by
Affirming.
This was a proceeding originally instituted in the Warren county court for the purpose of opening a road from the Louisville & Nashville pike to the Russellville road, a distance of about two miles. As it
There is no bill of exceptions or evidence in the record, which consists only of the record made in the county court and the judgment of the circuit court. Among the exceptions filed in the county court are the following: “ (1) That previous to the making and entering of the order -appointing said commissioners written or printed notices were not posted in five of the most public places in the district in which the proposed road is to be established, and. said notices were not so posted 20 days prior to the term of this court at which said order was entered, as is required by law. (2) That the application was not signed by five landowners, or any landowners.’’’ It is further insisted that the judgment is erroneous because the record does not affirmatively show that the viewers were sworn, although it does not appear that the question was raised by exception, either in the county or circuit court.
Ky. Stats., 1903, section 4289, provides, that all applications to have a new road opened shall be by petition to the county court, signed by at least five landowners of the county; section 4290 requires that,
The statute (section 4303) provides that in cases of this character an appeal that may be prosecuted from the county-court “shall be tried de novo, and from the decision of the circuit court either party may prosecute an appeal to the court of appeals, and the latter court shall have jurisdiction only of matters of
Our attention is called to the case of Mitchell v. Bond, 11 Bush 614, in which the court held that in a proceeding under the G-eneral Statutes to discontinue a road or erect gates across a road it was necessary that the record should show that the notice required by the statute was given. The statute that controlled the disposition of that case is different from the present statute applicable to road cases, under which this proceeding was instituted. Ford v. Collins, 108 Ky. 553, 56 S. W. 993; Chamberlaine v. Hignight, 97 S. W. 396, 30 Ky. Law Rep. 85. So that the rule laid down in the Mitchell case must be considered as having been changed by the statute, and it is no longer applicable to proceedings in road cases.
In respect to the objection, made for the first time in this court, that the record does not show that the commissioners were sworn to faithfully and impartially discharge their duties, as provided in section
The judgment of the lower court is affirmed. ,