
    Jesse Geddes et al. v. Simon Rice et al.
    1. An appeal to the Probate Court, from an order of county commissioners establishing, altering, or vacating a county road, is perfected when a bond is filed with the county auditor, as prescribed in the third section of the act of April 8, 1856 (S. & C. 1301), providing for such appeal.
    
      2. The jurisdiction of the Probate Court acquired by such appeal, is no^ lost by the failure of the auditor to transmit the original papers and transcript of the proceedings before the commissioners within the time directed by the fourth section of said act.
    •3. An appeal from a single order of the commissioners upon two petitions by the same parties — one to establish and the other to vacate a road — granting the prayer of each petition, but mating the granting of one dependent on the granting of the other, appeals both cases to the Probate Court.
    
      4. The execution of the order of the commissioners is suspended by the appeal, until the order is affirmed by the judgment of the Probate Court.
    .6. The statute does not authorize the commissioners to vacate a county road without a view, if objections are made to its vacation as provided by statute; nor does it authorize them to unite a proceeding to establish a new road with another to vacate a road, and make the granting of one dependent on the granting of the other.
    
      6, Where such consolidation is made by the commissioners, and the' order of vacation is made -without a view after objections thereto are duly made, and the order establishing the new road is founded on the - vacation of the other, the proceedings of the commissioners are erroneous, and, on appeal, should be set aside by the Probate Court.
    Error to the District Court of Morrow county.
    The plaintiffs presented a petition to the commissioners - of Morrow county for the establishment of a specified county road, and gave due notice of the hearing thereof at the next regular meeting of the commissioners, on the • first Monday of March, 1868. They also presented another petition to. the commissioners, praying for the vacation of specified parts of a county road and state road, and gave notice of the hearing thereof at the same meeting of the commissioners. So far, each of the proceedings was ■ separate and distinct from each other. The road sought to be established ran north and south between two east and west county roads; and the roads sought tp be vacated ran nearly diagonally between the two east and west roads,. and was crossed by the road proposed to be established.
    March 5, 1868, the commissioners appointed three viewers and issued an order, directing them to view the road sought to be vacated, and to report their opinion in favor - of or against the vacation of the road; and, in case of vacation, to proceed with a view to locate the road sought to-be established. The viewers reported that, after viewing - the roads sought to be vacated, they “ are of opinion that • the same be vacated;” and, with a view to locate the new road, they further report as follows: “ That the length of said road will not be increased, but will be diminished about 145 rods by the proposed alteration; that said alteration will place the road on as good ground as the same --now occupies, except at the crossing of "Whetstone creek, where the petitioners are willing, and pledge • themselves to erect a suitable bridge, and make it in a good condition to pass over said stream at their own expense, if said alteration is made; and, in said viewers’ opinion, said-. -■alteration ought to be established, for this reason, and the reasons contained in the petition of the applicants.”
    Thereupon, remonstrances were presented to the commissioners against the establishment, vacation, or alteration of said roads, on account of the increased distance necessary to be traveled by a road at right angles instead of a diagonal road, increased cost of building bridge, and the long ;and continued use of the road sought to be vacated.
    At the June session of the commissioners, the report of the viewers was confirmed, as follows:
    “ The report of the viewers, Canaan township, is hereby ■confirmed, upon condition that the petitioners shall make the proposed road to be established a good and suitable road, and build a good and substantial bridge across mid-file fork of Whetstone, mentioned in said report, to the acceptance of the county commissioners, and in accordance with plan and specification to be hereafter made.”
    Thereupon the remonstrants gave notice of appeal to the Probate Court, where the case was disposed of, as follows:
    “ This cause came on to be heard upon said plaintiff’s motion to dismiss the appeal in this action, for the following reasons, to wit:
    “ That the original papers in said road case, and a certified transcript from the record of the proceedings had and made by and before said commissioners, was riot filed in said Probate Court in time to perfect said appeal, ac■■cording to the provisions of the statute in such case provided, to wit:
    “ That the final order of said commissioners in said road ■case was made and entered of record by t¡h.e said commis•sioners, on the 3d day of June, A. d. 1868, and the bond for undertaking was given by said defendants for said appeal, on the 11th day of June, a. d. 1868, and that said original papers and said transcript of said proceedings before said commissioners, in said road case, were not filed in said Probate Court until the 7th day of July, a. d. 1868. And further, that it does not appear from any of said ■original papers or transcripts from said commissioners in eaid road case, or otherwise, whether said appeal was taken from the establishment or vacation of said road, or from both, or any other cause.
    “ Whereupon, the court do sustain said motion and dismiss the said appeal, with costs of suit.”
    ' This order was, however, reversed on error to the Common Pleas, and the case was remanded to the Probate ■Court for further proceedings.
    June 28, 1869, the ease was again heard in the Probate Court, which found that the proceedings “ were, in substance, regular and legal,” and thereupon affirmed the order of the commissioners.
    On the trial before the Probate Court, as appears by a bill of exceptions taken by the defendants, the defendants offered sundry items of evidence tending to prove that the proceedings of the commissioners were unauthorized and illegal. To each and all of which the plaintiffs objected, and the court sustained the objections and excluded the evidence; and the defendants excepted to the ruling of the court.
    The defendants took this case in error to the Court of Common Pleas, where the judgment of the Probate Court was affirmed. Thereupon, they filed their petition in error in the District Court, and that court. reversed both the judgment of the Common Pleas and that of tfie Probate Court, at the costs of the plaintiffs, and made no further order in the case.
    And now the plaintiffs come to this court to reverse the judgment of the District Court, and to affirm those of the Common Pleas and Probate Court.
    
      Beebe ‡ Prophet, attorneys for plaintiffs.
    
      Olds $ Dickey, attorneys for defendants.
   Day, C. J.

Did the defendants perfect their appeal to the Probate Court ? It is claimed they did not, by reason of the failure of the auditor to transmit the papers and transcript of the record before the commissioners to the-Probate Court.

There can be no appeal in any case except as provided by statute, and in each class of cases where it is granted, the statute prescribes the mode of perfecting it. The act of April 8, 1856 (S: & C. 1301), authorizes an appeal from the final order of the county commissioners establishing,, altering, or vacating a county road, and prescribes the proceedings to be had after the appeal. All it requires a party to do, “in order to perfect such an appeal,” is to-file a bond with the auditor, as provided by the third section of the act, within twenty days after the order was entered. This was done by the defendants. They had nothing more to do to “perfect” the appeal. Long v. Hitchcock, 3 Ohio, 272. The execution of the order of the commissioners was thereby suspended until the action of the-Probate Court in the case. To secure speedy action in the-case thus appealed, the fourth section of the act requires the auditor, within ten days after the filing of the bond, to-transmit the original papers and transcript of the record of the proceedings before the commissioners to the Probate-Court; and the probate judge is .required to forthwith docket the case and set it for hearing, which must not be-later than twenty days after such “ docketing of the appeal.” These are acts to be performed in the case, not by the parties, but solely by the officers of the law. In neither of them is the time of their performance jurisdictional, nor is one party more than the other responsible for their performance within the time directed by the statute. All was done, then, that is required to transfer the jurisdiction, of the case, by appeal, to the Probate Court.

It is claimed, however, that the appeal must fail because it is not specified whether the appeal was from an order vacating or establishing a road, or from an assessment of damages. As to the latter ground of objection it is only necessary to say that nothing appears in the record in relation to damages; so no appeal could be taken from an assessment of damages. The order appealed from was a single order on both the petition to vacate and the petition to establish a road, and the order made the granting of one dependent on the granting of the other; the appeal, therefore, no special entry being made to the contrary, took up the case made by each petition. They were united in the order, and, of necessity, were united in the appeal. Nor could the object of the appeal be accomplished in any other way.

The fifth section of the act requires the Probate Court “to affirm the orders of the commissioners,” if it shall, appear upon the hearing that the proceedings of the commissioners are, “ in substance, regular and legal but, if the court finds them to be “ substantially erroneous,” it is; required to set them aside and order another view, etc.

Were the proceedings of the commissioners substantially regular and legal? This question was answered in the-affirmative by the Probate Court and by the Court of Common Pleas. Therein we think both courts erred. There-were two petitions presented to the commissioners; one-for the establishment of a new road, the other for the vacation of an old road. They were distinct and independent proceedings, requiring in some respects different modes of procedure. The commissioners treated them as if they were neither the one nor the other, but united them, as-if together they made one proceeding for the alteration of a road. But there was no petition for the alteration of a road, nor was any ease made for the mere alteration of a, road. To meet the difficulty, however, the commissioners, at the session at which the petitions were presented (March, 1868), appointed viewers, and issued an order requiring them to meet on the 20th of the same month and view the road sought to be vacated, and report their opinion in favor of or against its vacation; and, if in favor of vacation, then to view the road sought to be established with a view to its location. Thus the establishment of the new road was made dependent on the vacation of the old one. But the statute providing for the vacation of a county road requires that the petition therefor shall be presented and fully read at a regular session of the commissioners, and no other proceedings shall be had thereon until the next .session of the commissioners, when it shall again be read .as aforesaid;” and, if objections to the vacation of the road .are presented, the commissioners shall then appoint viewers, ■etc. S. & C. 1294. But without waiting until the next session, the commissioners appointed viewers at the same session at which the petition to vacate was presented. At the next session of the commissioners in June, remonstrances against the vacation of the road were duly presented; but the commissioners, without then appointing viewers as required by law, proceeded to make the order ■of vacation which was appealed from. This, to say the least, was clearly irregular, and was done without the authority of law. The order establishing the new road was made dependent on the vacation of the old one; if the petition for the one did not succeed, the other was to fail .also. The foundation of the final order of the commissioners, aside from the other defects apparent in the order, having failed for want of legality, the whole order must fall with it.

Moreover, the alteration, vacation or establishing of ■roads is regulated wholly by statutes, which must be .substantially followed, in order that proceedings under them may be regarded valid. We fail to find any warrant in the statute for blending two classes of cases into one, making one entirely dependent on the other, or out of two proceedings of different kinds to make one of still another ■character.

This view of the case renders it unnecessary for us to ■determine whether the Probate Court erred in rejecting the evidence offered by the defendant. Without other evidence than that of the proceedings of the commissioners, ,as shown by the transcript and papers filed, it was the ■duty of the Probate Court to set aside the orders of the commissioners.

It follows that the judgment of the District Court, in reversing tlie judgments of the Common Pleas and Probate Court, must be affirmed. The District Court ought to have proceeded to render the judgment that should have been rendered by the Probate Court, or remanded the case to that court for further proceedings. It does not appear from the record before us that either was done. But no question is made by either party in relation to that matter, and we will leave the case as it was left by the District Court, to be remanded by that court, if further •action in the case is desired by the parties.

Judgment affirmed.

McIlvaine, Welch, Stone, and White, JJ., concurring.  