Lacy v. Williams

27 Mo. 280 | Mo. | 1858

Scott, Judge,

delivered the opinion of the court.

The second section of the 14th article of the practice act (R. C. 1855, p. 1295) directs that a writ of error shall issue on the final decision or judgment of the county court from the circuit court. The 4th clause of the 8th section of the act to establish courts of record and prescribe their powers and duties (R. C. 1855, p. 533) gives the circuit court appellate jurisdiction from the judgments and orders of county courts and justices of the peace, in all cases not expressly prohibited by law, and also confers a superintending control over them.

Except in a few instances expressly mentioned, the law seems to be silent as to the mode in which the benefit of appeals and writs of error shall be obtained on a judgment or decision rendered in the county court. No method is pointed out as to the manner in which the evidence shall be preserved in the inferior courts for the use of the superior court. A. trial de novo in the circuit court would not strictly be the exercise of appellate jurisdiction. (The County of St. Louis v. Sparks, 11 Mo. 203.) It is clearly competent for the general assembly to confer such a jurisdiction, but until it is expressly done we do not consider that the bestowal of a mere appellate power would authorize the courts to try causes de novo. It is obvious that a writ of error, without the authority to take bills of exceptions on the trial, would in most cases be ineffectual for the attainment of the ends proposed by such a process. Our legislation on this subject is defective, and requires some addition in order to give parties the full benefit of appeals or writs of error on the final decisions of the county courts. Under this state of legislation on this subject, it was held at the last term, in the case of Lewis v. Nuckols, 26 Mo. 278, that an appeal performed nothing more than would be effected by a writ of certiorari.

The county court of Polk county had no authority to appoint a curator for children who were not residents of the county. The order of appointment was void and may be treated as a nullify in a collateral proceeding. Regularly, the domicil of the parents is that of their children, and whilst the mother was a resident of Cedar county, a curator for her children could not be appointed by the county court of Polk county. This is the only safe rule, and the only one that will prevent confusion and conflict in the administration of the estates of minors. If one county court, because the minor has land in the uounty, may appoint a curator for him, so may every court where there is land in the county belonging to the minor, and so there would be many curators for the same child, and no subordinatian nor concert among them, nor any means of enforcing it. (Ludlow’s heirs v. McBride, 3 Ohio, 240; Maxom v. Sawyer, 12 Ohio, 206.)

For the reasons stated in the preceding part of this opinion, this cause will be dismissed, leaving the judgment of the county court rescinding the order appointing the curator in full force.

The other judges concur.