Walker v. Sundermeyer

271 Mo. 579 | Mo. | 1917

WHITE, C.

The appeal is from a judgment of the circuit court of Osage County establishing a drainage district in said county known as ‘ ‘ Shawnee Creek Drainage District of Osage County,” and declaring the same a body corporate. Tbe respondents here were tbe original petitioners before the county court of Osage County, and the appellants here were remonstrators.

Tbe matter reached tbe circuit court upon an appeal by tbe remonstrators from a judgment of tbe county court where tbe report of commissioners, appointed under section 5551, Revised Statutes 1909, was approved, and tbe objections of remonstrators overruled. Tbe judgment of the circuit court on a trial anew “approved and confirmed” tbe order and judgment of tbe county court.

Posting Notices.

I. Appellants claim that tbe county court did not acquire jurisdiction of tbe matter by reason of tbe failure of the clerk of tbe county court to post the notices required by section 5549, Revised Statutes 1909. This section providés that tbe county court, upon tbe filing of tbe petition for tbe formation of the district, shall cause three weeks’ notice of its presentation- and filing to be given in three different ways: First, by posting such notice in at least five of the most public places in said proposed district ; second, by causing a copy of tbe same to be served on each landowner or person interested residing in any county affected by tbe proposed work; and, third, by publishing tbe notice for three successive weeks in some newspaper. No question is raised as to tbe proper service of tbe notice by tbe second and third methods. It is claimed only that there was a failure to post tbe five notices in “five of tbe most public” places in tbe proposed district.

Tbe same section provides that tbe “certificate of tbe clerk or the-affidavit of any other credible person, affixed to a copy of said notice, shall be sufficient evidence of tbe posting,” etc. The record shows tbe affidavit of F. W. Hoehner to tbe effect that be posted tbe notices, describing the five places where he put them, and stating that those places were “five of the most public places in Shawnee Creek Drainage District as described within tbe aforesaid notice,” etc.

It appears that the petitioners were not content to stop with this affidavit, but introduced evidence to show where the notices mentioned in the affidavit were posted. This testimony shows, among other things, that there was no post office in the proposed district, no store, no blacksmith shop, no school house, and no public road; the appellants claim, therefore, that there was no public place in the district at which a notice could he put up. The places mentioned in the affidavit and identified by the witnesses were: a maple tree at a certain point near the line between two of the parties interested, a fence post on the line of one of the parties, and other like places. It was shown that these places were along private roads and places where they would be most likely to he seen by anyone passing through the district and were, in fact, “the most public places in the district.” There were only three families living in the district. Under the construction contended for by the appellant it would he impossible to give proper notice and form a district unless there were five places in the district which might be called public places. The statute contemplates the formation of drainage districts in places not easily accessible to the public and for that reason the words “most public places” were used instead of “public places” unqualified. The finding by the trial court that the posting of the notices was in compliance with the statute is sustained by the evidence.

Amending Commissioners' Report.

II. Another assignment of error by appellant was the action of the trial court in permitting the commissioners to amend their report. After the case got into the circuit court, and after hearing the testimony, the circuit court ordered the report of the commissioners to he corrected and it was corree^e^ in °Pen court. The correction related to the description of each tract of land mentioned in the report. The original report correctly gave the boundaries of the district and correctly stated the number of acres owned by each person, without giving correctly the .description of each tract. The amendment made the description of the several tracts more definite and certain and .possibly had the effect in some instances of including some parts which had been left out of the specific descriptions in the original report. The changes made did not affect the amount of damages awarded, nor the amount assessed as benefits, nor in any respect tend to affect the purpose of the report.

Section 5560, Revised Statutes 1909, as amended by the Act of 1913, Laws 1913, page 267, provides, among other things, upon a hearing of the report and remonstrance: “If the court finds from a hearing duly had that the report requires ■ modification, the same may be referred to the commissioners, who may be required to modify the report in any respect.”

This reference, of course, is to a proceeding in the county court and authorizes that court to modify the report ‘‘in any respect,” which would not violate the substantial rights of the parties.

It is not contended by appellants that the amendment could not have been made in the county court. They only claim that the circuit court was powerless to make it after an appeal there. In that appellants overlook the effect of an appeal to the circuit court from the judgment of a county court. Section 4091, Revised Statutes 1909, gives the circuit court appellate jurisdiction of judgments and orders of the county courts in the following terms:

“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 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 be possessed of such cause, and shall proceed to hear and determine the same anew, and in the same manner as if such case had originated in such appellate court.”

The effect of this statute is to give to the circuit court on appeal exactly the same authority and jurisdio tion in every particular as that enjoyed by the county court from which the appeal is taken and any amendment, correction or modification that might be ordered in the commissioners’ report in the county court can be ordered in the circuit court. All parties affected were before the court. [King’s Lake Drainage and Levee District v. Jamison, 176 Mo l. c. 566; Allen v. Welch, 125 Mo. App. 278, l. c. 287; Long v. Talley, 91 Mo. 305.] This statute relating to drainage districts must be “liberally construed to promote the drainage and reclamation of wet and overflowed lands.” This is provided in the act itself, apparently in order to cover irregularities and the embarrassment caused by mistakes and blunders in a proceeding of this kind. [Sec. 5573, R. S. 1909; Wilson v. Drainage Dist., 257 Mo. l. c. 289.]

No error is discernible in the record; the proceeding seems to have been entirely regular.

The judgment is affirmed.

Roy, G., concurs. PEE CUEIAM:

The foregoing opinion of White, C., is adopted as the opinion of the court.

All of the judges concur.