Lewis v. Nuckolls, 26 Mo. 278

Lewis v. Nuckolls

26 Mo. 278 | Mo. | 1858

Napton, Judge,

delivered the opinion of the court.

In November-, 1855, Heath Nuckolls and Stephen E. Nuckolls procured from the legislature a charter to establish a ferry on the Missouri river, in Holt county, which was to continue for fifteen years, and gave them exclusive ferry privileges for four miles up and down the river. The county court of Holt county was to fix the rate of ferriage, to take the necessary bonds, and were also empowered by the act to license other ferries within the prescribed limits in the event that the Nuckolls failed to keep up their boat in the manner the charter directed. At the November term of the Holt county court, 1856, Lewis applied for a license to keep a ferry on his own land within the limits of Nuckolls’ charter. The two Nuckolls appeared and opposed the grant, but the court upon the evidence submitted decided that H. and S. F. Nuckolls had failed to keep a boat and hands according to their charter, and therefore ordered that Lewis have a license. A motion was made by the Nuckolls to set this judgment aside, but the motion was overruled, and they appealed to *280the circuit court. Upon trial in the circuit court, a bill of exceptions, which had been taken in the county court an$ which purported to contain all the evidence upon which that court had acted, was the basis of the action of the circuit court, and, without hearing the case anew as was proposed, the circuit court affirmed the judgment of the county court. There was -a motion for a new trial and also in arrest of judgment, but both were overruled.

The judgment of the circuit court must, in our opinion, be affirmed. Conceding that an appeal lay to the circuit court, the only effect it had was to take the i'ecord up to that court as a certiorari would. No power was given by the charter or by the general law regulating the supervising control of the circuit court over the county courts to authorize the circuit court to try the case upon the facts.

It is urged here that the county court had no jurisdiction over the question of forfeiture of the charter because the Nuckolls were not notified. The record shows that they were present, and resisted the application of Lewis, and that they took the appeal. Whether they appeared voluntarily or by summons is immaterial.

The other judges concurring, the judgment is affirmed.