213 Mo. 601 | Mo. | 1908
This is an appeal from a judgment of the circuit court of Pike county dismissing a proceeding to establish a public road in said county.
The proceeding began by the posting of notices of the presentation of the petition for said road as
I. Preliminary to the disposition of the cause, a motion has been filed by the respondent for. permission to correct the record of the county court filed in the circuit court, so as to show an error in the date of the judgment of the county court ordering the road opened. In this application it is stated that while the transcript from the county clerk to the circuit court showed the said order to have been made on February 15th, 1904, as a matter of fact the judgment was not entered on that date and no such entry appears of record in said court as of February 15, 1904, but the entry of said judgment does appear on the records of said county court as of March 15, 1904. Wherefore, respondent moves this court that the said transcript may be amended in so far as the date of the rendition of said judgment is concerned. In support of this application, the respondent files in this court a duly certified copy of the record of the county court of Pike county by the present clerk of the said court showing that said entry does appear on the proceedings of March 15,1904, and also a certificate from Lem T. Patterson, who was the clerk of the county court of Pike county during the years of 1903 and 1904, in which he states that the recital that said order was made on February 15, 1904, was a clerical mistake by himself, and that as a matter of fact, the order was made and entered of record on the 15th of March, 1904. He
The motion to delay this appeal until mandatory proceedings can be instituted by the respondent against the county court of Pike county to amend its record in the road case, out of which this appeal has grown, we think ought not to be sustained. This appeal is from the judgment of the circuit court upon the record that was before that court and should mandatory steps be taken and the county court records amended so as to conform to the facts as asserted by respondent, it is evident that if such amended record should be filed in this court, it would present matter which was not before the circuit court and upon which it had no opportunity to pass, and might present a wholly different case from that which appeared to the circuit court when it rendered its judgment. We are not disposed to encourage any such extraordinary practice and the motion is overruled.
II. The first proposition presented by the appellants in this court is that the circuit court had no jurisdiction of the appeal in this case, because the said appeal from the county court was not taken in the ten days allowed by the statute. Section 1788, Revised Statutes 1899, provides: “In all eases 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 for the regulation of appeals from justices of the peace to circuit courts, and when any case shall be removed into a court of appellate jurisdiction by appeal from a county court, such appellate court shall thereupon
The only serious question under this state of the case is the effect of the appearance of the petitioners in the circuit court. As said by this court in Robinson v. Walker, 45 Mo. l. c. 120, “It has often been held that the appearance of a party by joining issue, or by any other action that shall indicate an intention to prosecute or defend the suit upon the merits, shall be deemed a waiver of a defect in the process or notice under which the appearance is had. But in every case of this kind the court had jurisdiction of the subject-matter, and it might with reason be said that a voluntary appearance is well enough. But the circuit court has no jurisdiction of a matter already decided on in another court, and especially in actions of forcible entry and
As the circuit court had no jurisdiction of the appeal, its judgment dismissing the petition and quashing the proceedings in the county court was without authority of law and must be and is reversed.