246 Mo. 44 | Mo. | 1912
This is an original proceeding in mandamus, the purpose of which is to obtain a writ from this court, commanding the respondent, as judge of the circuit court of St. Louis county, to assume jurisdiction of a proceeding pending in his said court on appeal from the county court of said county, in which relators are seeking to establish a private road, and also commanding him to appoint commissioners to lay out said road and assess damages therefor.
The substance of the allegations of relators’ petition, briefly stated, is as follows:
On August 22, 1910, they filed in the county court of St. Louis county a petition for a private road. That petition alleged that relator McDermott Eealty Company, a domestic corporation, was the owner, and that relator John W. Bellairs was the lessee, of a tract of land therein described, located in said county, and that no public road passed through or touched said tract of land, and prayed that a private road be opened from said tract, through and over the lands of the United Eailways Company and others, to Marine Avenue, a public road in said county. Upon a hearing in the county court the petition was denied and petitioners appealed to the circuit court. The respondent, as judge of the circuit court, heard the cause on appeal, made a finding in favor of petitioners, adjudged that the petition should be granted, and remanded the cause to the county court for further proceedings therein. After the cause was so remanded, the United Eailways Company instituted a suit in this court to prohibit the judges of the county court from taking further cognizance of the cause. This court held in that suit that, the county court did not have jurisdiction of the proceeding, for the reason that the appeal to the circuit court gave the latter court exclusive jurisdiction, on a trial de novo, to take all action necessary to a complete determination and disposition of the proceeding. [State ex rel. v. Wiethaupt, 238 Mo. 155.] The United Eailways Company also prosecuted an appeal to this court from the judgment of the circuit court remanding the cause to the county court. On motion of appellees (relators herein), that appeal was dismissed because
The prayer of the petition is that a writ of mandamus be issued, commanding respondent to again assume jurisdiction of the cause and make an order appointing new commissioners to lay out the road and assess damages or refer the matter to the former commissioners for the performance of such duties.
After setting out the history of the litigation substantially as stated in the petition, respondent alleges in the return that the term of the circuit court at which it was adjudged by him that he was without jurisdiction to proceed further has long since adjourned;
Belators contend: First, that respondent, as judge of the circuit court of St. Louis county, has jurisdiction to hear and determine the cause; and, second, that they are entitled to relief by the peremptory writ of mandamus of this court. Both of these contentions are controverted by respondent.
I. In overruling the motion for the appointment of new commissioners, the court made and entered of record the following order: “Ordered by the court, after due and full consideration of the motion heretofore filed to appoint other commissioners, that the said motion be and the same is hereby denied upon the ground that the petition filed herein does not state, and the record of the county court does not show, that the petitioners are inhabitants of the State, and this court is therefore without jurisdiction to proceed further.” We are of opinion that the circuit court was not without jurisdiction, and for the reasons following:
It is provided by Sec. 10447, R. S. 1909, that: “If any inhabitant of this State shall present a petition to the county court of the proper county, setting forth that he or she is the owner of a tract or lot of land in such county, or in an adjoining county, and that no public road passes through or touches it, and asking for the establishment of a private road from his or her premises, to connect with some public road of the county in which the proceedings are had, at some' con
It will be observed that although the statute expressly designates what facts shall be set forth in the petition, it does not require that it shall thus appear that the petitioner is an inhabitant of this State. While the right to a private road is conferred only upon ‘ ‘ any inhabitant of this State,”, and therefore the record should show that the petitioner is such an inhabitant, it is not essential that such fact should appear in the petition. [Snoddy v. Pettis County, 45 Mo. l. c. 363; Fisher v. Davis, 27 Mo. App. l. c. 325.]
In the Snoddy ease, supra, this court said: “It is claimed that those proceedings were erroneous: First, because the petition does not show that twelve of its signers were householders of the township, etc. The statute is express that it must be signed by that number of householders, etc., three of whom shall be of the immediate neighborhood of the road. But it does not say that they shall be so described in the petition ; and if they were so described, it would have been no evidence of the fact.”
And in the case of Fisher v. Davis, supra, discussing the question of the sufficiency of a petition for a private road, the court said: “We can find no warrant for the assumption that the qualification of the petitioners must be recited in the body of the petition. That is a matter of evidence to be determined by the court, on the hearing of the petition.”
The statutory requirement as to the inhabitancy of the petitioners not being alleged in the petition, was it essential to the jurisdiction of the circuit court that it should have appeared in the record of the county court? We think not. The statutory provisions appli
In the case of Chandler v. Reading, 129 Mo. App. l. c. 70, discussing this subject, the court said: “As jurisdiction attached to hear and determine the cause by the fifing of the petition and the service of notice on defendants, we think it was immaterial at what, stage of the proceedings the court found the road proposed was a road of necessity, or that petitioner was an inhabitant of Pike county. It is enough to know that the court found these facts affirmatively at some stage of the proceedings; they were found and are recited in its final judgment; this is sufficient.”
For the foregoing reasons we have concluded it was not essential to the jurisdiction of the circuit court that it should have appeared either in the petition or in the record of the county court that the petitioners were inhabitants of this State, and further that the circuit court was possessed of complete jurisdiction to proceed to hear and determine the cause.
We have held that the circuit court was possessed of jurisdiction, and as respondent refused to appoint new commissioners and did not proceed with the cause, and as no final judgment from which an appeal would lie was entered, relators are entitled to relief. [State ex rel. Kansas City v. Field, 107 Mo. l. c. 450.] The alternative writ commanded that the respondent “ assume jurisdiction of the cause of petitioners in their application for a private roadway of necessity and make an order appointing new commissioners, with like powers and duties as the former commissioners, or to order the former commissioners to again proceed with the duties enjoined upon them in their order of appointment, or show cause ’ ’ etc. It is not the function of a writ of mandamus to direct the course of judicial action in a given cause hut the writ may issue to compel a respondent clothed with judicial power, to proceed with the cause. The alternative writ commanded action in excess of that authorized in this proceeding, and therefore a peremptory writ should be issued, commanding respondent, as judge of the circuit court of St. Louis county, to assume jurisdiction of the cause and to proceed in the exercise thereof to final judgment. It is so ordered.