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State ex rel. v. Staten.

THE STATE ex rel. J. W. COMBS, Appellant, v. JASPER N. STATEN et al., Judges of the County Court of Vernon County.


Division One, June 2, 1916.

When Bill of Exceptions Necessary: Certiorari. Where a writ of certiorari was issued to the judges of the county court, having for its purpose the quashing of the order of that court establishing a public road, and by agreement the entire records and rolls of the proceedings in said road case before the county court "are to be considered a part of the responde.ts' return," a bill of exceptions, setting forth such records and other documentary evidence and an oral evidence heard and considered by the circuit court, is necessary on an appeal from its judgment; and if no such bill is presented to the Supreme Court, nothing but the record proper, which would be the petition for the writ, the return, the motion to quash the return and the judgment, can be considered.

2. PUBLIC ROAD: Interest of Relator. If the relator in the writ of certiorari fails on the face of his petition to reveal that he has any interest in the subject-matter of the proceedings before the county court which resulted in an order establishing a public road, the action of the circuit court in dismissing the writ will be approved on appeal, because relator was not entitled to the writ.



: Certiorari: Remedy by Appeal. An interested land owner, objecting to the order of the county court establishing a public road, has ample remedy by appeal to the circuit court, as to damages, as to insufficient notices, as to the commissioners being disinterested freeholders and as to a hearing of a remonstrance, and therefore, since the trial n the circuit court is de novo, & writ of certiorari to quash the order establishing the road should be denied.

-: Judgment: Validating Precedent Matters If the final judgment of the county court establishing a public road affirmatively covers all the jurisdictional facts, it validates any portion of the record which is silent as to the petition and remonstrance.

Appeal from Vernon Circuit Court.-Ion. B. G. Thurman, Judge.


State ex rel. v. Staten.

J. B. Journey for appellant.

(1) The matter of establishing a public road is in the nature of condemnation proceedings, strictly a statutory proceeding, and contrary to the course of the common law. The statute must be strictly complied with. Sec. 10435, R. S. 1909; Spurgeon v. Bartlett, 56 Mo. App. 355; Anderson v. Pemberton, 89 Mo. 601; Railroad v. Kellogg, 54 Mo. 334; Jefferson County v. Cowan, 54 Mo. 234; Whitelet v. Platt County, 73 Mo. 30; Bennett v. Hall, 184 Mo. 407. Not one of the jurisdictional steps were taken by the court in this cause. Spurgeon v. Bartlett, 56 Mo. App. 355; Jones v. Zinc, 65 Mo. App. 409; Railroad v. Young, 96 Mo. 39; Strawhan v. County Court, 65 Mo. App. 644; Fisher v. Davis, 27 Mo. App. 321; Zimmerman v. Snowden, 88 Mo. 218; Taylor v. Todd, 48 Mo. App. 550. Each jurisdictional step must be taken before proceeding to the next step, and this must be done before jurisdiction can be acquired in the next step. Spurgeon v. Bartlett, 56 Mo. App. 355; Jones v. Zinc, 65 Mo. App. 409; Railroad v. Young, 96 Mo. 39. (2) There must be some connecting link when a cause is commenced on a certain day and continued from day to day and term to term. If a cause is revived at a day subsequent, or a term subsequent to the one at which it is commenced, there must be some notice to the adverse party of any intended action therein. (3) Unless a special called term is regularly and properly called, and the statutes complied with, the proceedings had at such term must necessarily be coram non judice. And especially is this true when such acts or proceedings are attacked in a direct manner, such as by writ of certiorari.

Scott & Bowker for respondent.

(1) The relator is not in a position to maintain this writ for the reason that it appears from the rec

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State ex rel. v. Staten.

ord in this case that he has no interest in the same and is not injured or damaged by any of the proceedings of the county court in said matter. Blodgett v. McVay, 108 N. W. 239; People v. Leavitt, 41 Mich. 470. (2) The writ of certiorari will not lie where there is a remedy by appeal. In this case all the matters complained of could have been reached by an appeal if there was any error. State ex rel. v. Nodaway County, 80 Mo. 500; State ex rel. v. Reynolds, 190 Mo. 578; Moore v. Bailey, 8 Mo. App. 156. (3) The proceedings of the county court in this case substantially comply with the statute and that is sufficient. Connors v. St. Joseph, 237 Mo. 612; Bennett v. Hall, 184 Mo. 407; Wilhite v. Wolfe, 179 Mo. 472. (4) The filing of the statutory petition and the giving of the proper notice give the county court jurisdiction of a road case and what happens after that is mere matter of error and can be corrected on appeal. Wilhite v. Wolfe, 179 Mo. 472; Bennett v. Hall, 184 Mo. 407; Chandler v. Reading, 129 Mo. App. 63. (5) If the court recites and finds the jurisdictional facts in its final judgment, this is sufficient. Chandler v. Reading, 129 Mo. App. 63; Wilhite v. Wolfe, 179 Mo. 472; Bennett v. Hall, 184 Mo. 407. (6) The county court had jurisdiction to act and enter final judgment at the time it did act at its special term on this road matter. State ex rel. v. Mitchell, 127 Mo. App. 455; R. S. 1909, sec. 4088.

RAILEY, C.-On October 7, 1912, a petition for a writ of certiorari was filed in the circuit court of Vernon County, Missouri, which, without caption and the description of the proposed road, reads as follows:

"The relator herein, J. W. Combs, complains of the respondents, Jasper N. Staten, W. S. Creel and Jas. H. Caton, and for cause of action states that the respondents do now and did at all times hereinafter complained of, compose the county court of

State ex rel. v. Staten.

Vernon County, State of Missouri; and that on the day of October, 1911, it being the regular October term of the county court of said county and State aforesaid, there was commenced before said justices and in said county court a proceeding for the purpose of establishing a new public road in Harrison Township, Vernon County, Missouri, known as the Alva Ripley et al. public road, described as follows, towit:"

(Here follows the description of the proposed road.)

"The relator further avers that said respondents have taken cognizance of and are proceeding to act in said matter thus brought before them, and are about to order said new public road opened, and are about to condemn and take from this relator a tract of land forty feet in width and one-half mile long, through relator's land, described as aforesaid.

"Relator further avers that said respondents are therein acting without authority of law and without jurisdiction in the premises, for the reasons, first, that the notices of the intended application for said road were posted by the petitioners and made returnable at the July term, 1911, of said county court, but that proof of said notices was not made until the following October term, 1911, of said court. And that said petition for said new public road was not filed as indicated by said notices, nor was the same acted upon by said county court until the regular October term, 1911, and that then said county court proceeded to order said road surveyed by the county highway engineer without first having given the remonstrators an opportunity to be heard thereon, nor was any evidence heard by said court as to the public necessity, practicability and probable damages to the owners of the land through which said proposed road would run, nor did they find and enter as a matter of record that said proposed road was a public neces

State ex rel. v. Staten.

sity, or the practicability thereof, or that due notice of the intended application for said road was ever given, but proceeded at once to order the county highway engineer to view, survey and to mark out said proposed public road; and then proceeded at once upon the report of said highway engineer to appoint three commissioners to assess the damages along said public road to the landowners without having determined as a matter of record that said commissioners so appointed by them aforesaid were qualified under the law to act as such commissioners, in this, that they failed to find that they were disinterested freeholders of said county.

"Relator further avers that said proceedings of the respondents are altogether outside of the course of the common law, and likewise outside of any statutory or judicial proceedings, and that no writ of error or appeal lies to such proceedings from this or any other court to this relator.

"Wherefore the relator prays this court to issue a writ of certiorari, directed to the respondents in their official capacity as aforesaid, requiring them and each of them to certify to this court a true, full and complete copy of the petition, remonstrance, record and all other acts and proceedings in said matter, and have said copy returned to this court on or before the day of 1912, in order that this court may adjudicate upon the legality of said proceedings, and may make such other and further adjudication and orders therein as right and justice may require."

A writ of certiorari was issued in due form and served on defendants as the justices of said county court.

On October 7, 1912, respondents filed their return, which, without caption, reads as follows:

"Comes now the defendants in the above entitled cause and for return to writ of certiorari issued

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