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State ex rel. v. Staten.

against them, deny each and every allegation therein contained. Defendants state that all the proceedings concerning the road referred to in plaintiff's petition and writ were conducted according to law, and in pursuance with the statutes in such case made and provided.

"Defendants for further return to said writ, hereby tender to the court the entire files and records of the county court in said road proceedings."

On October 16, 1912, relator filed a motion to quash the proceedings of the county court aforesaid, in respect to the establishing and opening of said road. Said motion, without caption, reads as follows:

"Now at this day comes the relator herein and moves the court to quash the proceedings of the county court in establishing and opening what is known as the Alva Ripley et al. public road, for the following reasons, to-wit:

"1. The petition for said public road was not filed with said county court within the time prescribed by the notices for said public road.

"2. The county court failed to take proof, or find that notices of the intended application for said public road, were posted according to law.

"3. The county court failed to find that said public road petition was signed by twelve or more freeholders residing in the township where said proposed public road was to be established, three of whom resided in the immediate neighborhood of said proposed road.

"4. The said county court failed to take testimony, and failed to find that said proposed public road was a public necessity, the practicability and probable damages to the landowners through whose land said proposed public road would pass.

"5. The county court failed to appoint three disinterested freeholders to assess the damages to the landowners as provided by law.

State ex rel. v. Staten.

"6. The county court failed to obtain jurisdiction in said road proceedings for other reasons appearing on the face of the record of the county court in said road proceedings.'

The circuit court entered its decree in this cause, which, without caption, reads as follows:

"And on this 16th day of October, it being the 9th day of the regular October term, said cause coming on for hearing upon respondents' return and relator's motion to quash the proceedings of the county court as shown by said return, and the court after an inspection of said return, and after hearing the evidence and argument of counsel, enters the following judgment in said cause, to-wit:

"Now on this day, the above entitled cause coming on for hearing upon the petition, writ, and return of respondents herein, the court having fully considered the return and the writ issued in this cause, together with the records and files of the county court of said road proceedings, made a part of said return, the court after duly considering the same and hearing the argument of the counsel, finds the issues joined in favor of the respondents; that said road proceedings described in the writ to the county court of Vernon County, Missouri, were regular and according to law, and that the relator is not entitled to the relief prayed for.

"It is therefore ordered, adjudged and decreed by the court that said writ be and hereby is dismissed at the cost of the relator, and that respondents have and recover their costs, and that execution issue therefor."

On October 18, 1912, relator filed his motion for a new trial for the following reasons:

"1. That said finding and judgment are against the evidence, against the weight of the evidence, and against the law under the evidence.

State ex rel. v. Staten.

"2. That said finding and judgment is for the wrong party."

The above motion was overruled; the cause appealed to the Kansas City Court of Appeals; and relator given leave to file his bill of exceptions on or before the first day of the next regular term of said circuit court. No bill of exceptions was ever filed in the cause, although the judgment of the court below recites that evidence was heard at the trial.

Bill of

I. The circuit court had before it the record entries of the county court and also the documentary evidence produced before said court. None of the oral testimony heard by the county court was certified to the circuit court to be considered with the documentary evidence filed by respondents. We know of no provision of law which authorizes a bill of exceptions to be filed in the county court containing the oral and documentary evidence introduced before said court, in order that it may be made a part of the record thereof. Appellant's abstract contains the following:


"And by agreement of the parties hereto, the entire records and rolls of the proceedings of said road case before the county court of Vernon County, Missouri, are to be considered a part of the respondents' return."

In order to consider this agreement and the testimony heard by the court, on the motion to quash, a part of the record in the cause, it was necessary that they should have been incorporated in a bill of exceptions. We hold, that the certified copies of the county court records, as well as the documentary evidence accompanying same, and all other evidence considered at the trial, should be incorporated in a bill of exceptions, in order to become a part of the record in the case. Without a bill of exceptions, we can only

State ex rel. v. Staten.

consider the record proper, which in this case, would be the petition; the return of respondents; the motion to quash filed by appellant and the judgment of the trial court. [Bradbury v. Smith, 181 S. W. (Mo.) 1. c. 422; Stevenson v. Smith, 177 S. W. (Mo.) 1. c. 615; McMurray v. McMurray, 258 Mo. 405, 415; Mitchell v. Sparlin, 255 Mo. 124; Hanne v. Garvey, 255 Mo. 106; Mahaffey v. Cemetery Assn., 253 Mo. 1. c. 141-2; Bridge Co. v. Corrigan, 251 Mo. 667; Craig v. Railroad, 248 Mo. 270; Harding v. Bedoll, 202 Mo. 625.]

As no bill of exceptions was filed in the case, we will turn to the record proper as heretofore indicated, in order to determine whether the trial court can be convicted of error therefrom.

II. Referring to the record proper and considering the petition, answer, motion to quash and the judgment below, we find nothing which On Record would warrant us in disturbing the finding and judgment of the trial court in this



III. There is nothing in the petition or the record which indicates that relator has any interest in the subject-matter of this litigation, nor does it appear why he waited until more than seven months after the road had been ordered


of Relator. opened by the county court, before com

mencing this action, even if he were interested in said proceeding. Having failed to disclose on the face of his petition that he has any interest in the subjectmatter of the proceedings before the county court, relator was not entitled to the writ issued by the trial court, and hence, its action in dismissing same was proper under the law. [Davison v. Otis, 24 Mich. 1. c. 25; People v. Leavitt, 41 Mich. 470; Blodgett v. McVey, 131 Iowa, 552; Colden v. Botts, 12 Wend. 234.]

State ex rel. v. Staten.

IV. If relator had any interest in the subjectmatter of this controversy, and desired to have the proceedings before the county court reviewed, he had an adequate remedy by appeal. Section 10440, Revised Statutes 1909, reads as follows:

Remedy by Appeal.

"Appeals to the circuit court shall be allowed by either party from the judgment of the county court assessing damages, or for opening, changing or vacating any road, and upon such appeal the circuit court shall proceed to hear and determine the same anew; but no commissioner shall be appointed by the circuit court, nor shall any appeal, prior to the determination thereof in the circuit court, operate as a supersedeas of the proceedings of the county court; and provided further, that all appeals shall be taken within ten days from the date of rendition of the judgment appealed from, and the appellant shall, before such appeal is allowed, file with the clerk of the county court his appeal bond, payable to the county and to the appellee, as their interest may appear, in such sum as may be required by the county court or by the clerk thereof in vacation, and conditioned that he or they (the appellants) will fully pay or satisfy any judgment for damages or costs that may be rendered against them in the circuit court, and will in all things abide the judgment of said court."

We have heretofore held in plain, unmistakable language, that where a party has an adequate remedy by appeal, he cannot resort to certiorari proceedings in cases of this character. [State ex rel. v. Goodrich, 257 Mo. 40, 50; State ex rel. v. Mosman, 231 Mo. l. c. 482-3; State ex rel. v. Reynolds, 190 Mo. 578; State ex rel. v. Woodson, 161 Mo. 444; State ex rel. v. Shelton, 154 Mo. 1. c. 691; State ex rel. v. Nodaway County Court, 80 Mo. 500.]

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