8 Mo. App. 156 | Mo. Ct. App. | 1879
Lead Opinion
delivered the opinion of the court.
There was a certiorari sued out of the Circuit Court of St. Charles County by the appellant, directed to the County Court of St. Charles County. It appears that Bailey petitioned for the opening of a private road across the lands of Moore, to connect his lauds with the Boonslick Road, and prayed for the appointment of commissioners. Objections of Moore were sustained to the first report, aud the matter was recommitted to the same commissioners, who filed a report, signed by only two of their number, which they were allowed to withdraw and refile, signed by the three commissioners. A motion to dismiss the proceeding was then filed by Moore, and overruled ; and Moore then filed objections to the report, which were all overruled, except as to damages. The question of damages was tried by a jury, who brought in a verdict: “We, the jury, find for the plaintiff the sum of one hundred and .fifty dollars.” The court thereupon made the following order“ Court establish the road, and order that the same be opened in ninety days, provided damages and costs are paid as required by law.” Moore then sued out a writ of certiorari, on the ground that
The appellant, in his brief, urges many objections to the pi’oceedings in the County Court, and to the action of the Circuit Court in excluding evidence. But we think that the Circuit Court committed no error in dismissing the .writ; and this being so, we cannot consider the other questions which are presented in the brief of counsel for the appellant.
In Snoddy v. County, 45 Mo. 361, the Supreme Court held that, though the Circuit Court has “ appellate jurisdiction from the judgments and orders of the County Courts in all matters not expressly prohibited by law,” yet resort must be had to the writ of certiorari, and not to the ordinary form of appeal, when it is desired to review the action of the County Court in the matter of opening a road, because the manner of taking such appeal was not then expressly provided for by statute. But, since the appeal in the case just referred to, the act of January 24, 1870, was passed, providing ( Adj. Sess. Acts 1870, p. 45) that “ in all cases of appeal from the final determination of any case in a County Court, such appeal shall be prosecuted to the appellate court in the same manner as is now provided by law
While the Legislature had made provision only for the exercise of appellate power, without making any provision for a trial de novo in the Circuit Court, an appeal could perform nothing more than could be effected by certiorari; there was no provision for preserving the testimony, and in neither one case nor the other, could the superior court do more than examine errors apparent on the face of the record, without making any inquiry into matters of fact. Lewis v. Nuckolls, 26 Mo. 278 ; Lacy v. Williams, 27 Mo. 282. But now that the Legislature has conferred upon the Circuit Court the jurisdiction to try de novo, on appeal, all cases coming up from the County Court, it is manifest that such errors should be brought up in the manner provided by statute, and that an application for certiorari by way of appeal from a final judgment of the County Court should be denied. The writ is issued at common law to bring up summary proceedings had before inferior courts, where-these proceedings are examinable on error, or, as with us, by appeal; the writ will not issue for the purposes of review. It issues for that purpose only where there is no other mode of directly reviewing the proceedings of the inferior tribunal. Railroad Co. v. Morton, 27 Mo. 318 ; Doolittle v. Railroad Co., 14 Ill. 383 ; The People v. Wilkinson, 13 Ill. 660.
The judgment of the Circuit Court is affirmed.
Rehearing
delivered the opinion of the court on a motion for a rehearing.
A motion for a rehearing has been filed in this cause, which must be overruled.
As is stated in the opinion filed, Bailey petitioned for the opening of a road through the lands of Moore. The result was an order of the County Court opening the road. From this order an appeal lay to the Circuit Court, in the same manner as provided for appeals from the judgments of a justice of the peace ; and the act giving the appeal directs a trial anew in the Circuit Court. Acts 1870, p. 45. Moore applied to the Circuit Court for a certiorari. Bailey moved to dismiss the petition ; the motion was overruled and the writ issued. A motion was filed by Bailey to quash the writ. Bailey then filed a joinder in error. Afterwards the motion to quash the writ was sustained, and Moore appealed. These facts appear from the record proper. The bill of exceptions states, amongst other things, that “ defendant filed his joinder in error. The court found the issues joined for defendant, and rendered judgment in his favor.”
Of these entries we could make nothing but this: that the Circuit Court, having improvidently issued the writ, took the matter under advisement; and after excluding, as the bill of exceptions shows, all oral testimony offered, reconsidered its action in issuing the writ, and quashed the proceeding.
In this we held that there was no error ; because, where an appeal is given by statute, certiorari is not the proper method of bringing up the case for review.
Appellant contends that the whole record shows that the Circuit Court considered certiorari to be the proper method of bringing up the action of the County Court for review ; that the writ was quashed, not because-it was improvidently issued, but because the Circuit Court found no error in the proceedings ; and that the quashing of the writ is, in effect, a
As to the writ itself, it may be remarked that we have no statutory regulation on the subject, except in the special case of forcible entry and detainer. In many of the States it is expressly authorized, and its limits are defined by statute ; but with us the writ is a common-law certiorari, and the nature and extent of the power, the cases in which it may be exercised, and the practice in proceedings of this nature are all governed, with us, by the common law. The People v. Alstyne, 32 Barb. 134. Our Circuit Courts have undoubtedly all the attributes of common-law courts, and they have authority to issue the writ (Const., Art. VI., sect. 23), and inherent jurisdiction to do so ; but if anything is certain, upon principle and authority, it is this : that the writ should not be issued where a right oí appeal exists, unless there has been a usurpation of power by a denial of that right; and where easy access to a higher tribunal is afforded by appeal, it has always been said that the courts should, in the exercise of a sound discretion, refuse the common-law writ of certiorari. The writ is denied, amongst other reasons, for this sufficient one : that it will not reach the merits. Davis County v. Horn, 4 Greene (Iowa), 94; Wood v. Randall, 5 Hill, 269; Whitneys. Delegates, etc., 14 Cal. 499 ; Peltry v. Jones, 1 Ired. L. 408; 13 Ill. 660. The office of a common-law certiorari, unaffected by any statute, is, not to review erroneous legal decisions, but to set aside proceedings for want of jurisdiction ; and though it may be the substitute for an appeal, when not allowed by
This case has never been reversed or questioned, and is undoubtedly law in Missouri at this day. The concluding sentences quoted above are peculiarly applicable to the contention of appellants, that the whole record in the present case shows that the Circuit Court sustained the propriety of
Appellants urge that since the passage of the act of 1870 providing for appeals from final determination of any case by the County Courts, such proceeding have been brought up to the Circuit. Court by certiorari, with the approval of the Supreme Court. And they cite some cases in support of this position ; but the cases cited do not seem to be in point. House v. Clinton County Court, 67 Mo. 522, was a case of petition for relief from assessment, in which it is clear that no appeal lay. Britton v. Steber, 62 Mo. 370, was an attempt to bring before the Supreme Court by certiorari a case involving title to an office not under the State, in which this court had final jurisdiction. The Supreme Court decides that it has no jurisdiction to review by certiorari the decisions of this court. The last case cited is Owens v. Andrew County, 49 Mo. 372. It was a proceeding against a county treasurer for the sum found by the County Court to be due by him on settlement, together with the statu
We are not aware that the question as to the right to sue out a writ of certiorari from judgments of the County Court in cases in which provision is made for an appeal in the statute of January 24, 1870, has ever been called to the attention of the Supreme Court.
For reasons that seemed satisfactory to us, we have departed in this case from our usual practice, of not assigning reasons for overruling a motion for a rehearing. The motion for a rehearing is overruled.