
    Case 73 — SPECIAL PROCEEDING
    June 15.
    Sullivan v. Wilson, &c.
    APPEAL FROM LEWIS CIRCUIT COURT.
    1. Ferry Rights — Condemnation of Land — Appeals.—Upon appeal to the circuit court from a proceeding in the county court seeking to condemn land for ferry purposes, the circuit court was authorized to hear evidence in addition to the evidence certified from the county court. It appears in this case that at the time of the condemnation proceedings in the county court, the owner of the land was of unsound mind, and was not competent to elect whether the condemnation should .be made for twenty years or in fee, and the circuit court upon appeal by his-committee properly heard evidence as to his mental condition, and reversed the order of the county court, and directed the issual of a new writ, and that the committee be given the right, of election which the owner had declined to exercise.
    WADSWORTH & COCHRAN iron appellant.
    1. The jurisdiction of the circuit court was appellate only, and it had no right to reverse the judgment of the county court, except for errors apparent upon the record. Section 2, chap. 42, General Statutes; Helm v. Short, 7 Bush, 623; Smith v. MeMeekin, 79 Ky., 24; Rollins v. Biggs, 85 Ky., 251; CrittendenCounty V-. Shanks, 88 Ky., 475.
    2. But if wrong in this, then the effect of the appeal was to set aside the judgment of the county court, and the circuit court should have proceeded to render judgment as if the case had 'been there in the first instance, and should not have remanded it to the county court.
    3. Whatever the nature of the jurisdiction of the circuit court may have been it could only try the case as made out in the county court, and no, exceptions having been filed in the- county court there was nothing to try in the circuit court.
    4. The issue as to the validity of the inquest should have been raised.'. by exceptions before entering upon the trial of the appeal, and none having been filed the oral evidence should have been rejected and the proceedings of the county court approved.
    6. The mental unsoundness of appellee was not sufficient to render 'him incapable of attending to his own interest in the county court, and making the election as to the condemnation of his-property. It consisted only in a belief that somebody was trying to kill him, and did not affect his business qualifications. 11 Amer. & Eng. Enc. of Law, 132; Rice v. Rice, 53 Mich., 432; Otto v. Dote, 61 Iowa, 23; Smith’s Will, 53 Wis., 543; Warren’s. Will, 9 Dana, 434; Banks v. Goodfellow, L. R. 52 B., 54; Pidcock v. Potter, 68 Pa. St., 348; Benvest v. Morrin, 58 Mo., 307; Cole’s Will, 49 Wis., 179; Wetler v. Habershaw, 60 -.Ga., 194; S-mee v. Smee, L. R. 5 Prob Div., 84; Emory v. Height, 46, 111., 258; Odel v. Burk, 21 Wendell, 142.
    6. The fact that a party to a proceeding in court is of unsound mind, but has not been judicially found to be so, does not affect the validity of any of the steps in such proceeding, and can not be made a ground of reversal of the judgment or make it open to collateral attacks. Freeman on Judgments, vol. 1, sec. 152, 4th Ed.; Stigers v. Bryant, 33 Amer. Rept., 317; Wood v. Brown, 47 Amer. Rept., 369; King v. Robinson, 54 Amer. Dec., 614; Lansen v. Taylor, 32 Amer. Dec., 68; Johnson v. Pomeroy, 31 Ohio St., 247.
    'SALLEE & SALLEE fob appellees.
    1. The notice of application filed December 15, 1891, and upon which the court acted ought to have been posted at the court house door of the county, on the first day of the term of court next preceding that in which the application was made (Kentucky Statutes, sec. 1804); and the record not showing that this notice of application was so posted, the subsequent order granting ferry license to John Sullivan is void and of no effect. Hazelip v. Lindsay, 13 Ky. Law Rept., 913; Stahl v. Brown, 84 Ky., 325.
    '2. The condemnation proceedings did not conform to the requirements of law, and are therefore void. The court properly heard evidence upon the appeal to the circuit court. Sec. 1801, Kentucky Statutes.
    
      3. The evidence shows conclusively that the damages assessed by the jury were not equal to the fair and just value of the property condemned; and that Wilson was at that time of unsound mind, and therefore did not exercise the right of election.
    A. E. COLE & SONS on same side.
   .JUDGE GUFFY

delivered the opinion of the court.

It appears that the appellant, John Sullivan, obtained from the Lewis County Court the grant of a ferry right and franchise across the Ohio river from Manchester, Kentucky, to Manchester, Ohio, and, in order to properly enjoy the said franchise, it became necessary to condemn for ferry purposes a portion of the land owned by appellee, H. L. Wilson. A jury, summoned under a writ of ad quod damnum, fixed the damages to said Wilson at £2,350.00, including the fee do two acres of land, Wilson having refused to make his election as to whether the land should be condemned for a period of twenty years or in fee.

The final judgment in said proceeding seems to have been rendered in March, 1891. On the 3d day of July, 1893, the said Wilson and Jas. EL Sallee, committee for said Wilson, prosecuted an appeal to the Lewis Circuit Court, and upon final hearing the Circuit Court adjudged; “That the appeal be sustained, and judgment of the County Court in this cause be reversed and verdict of the jury and judgment therein be set aside, and that this cause be remanded to the Lewis County Court with directions and instructions to said court and the judge thereof to set aside the judgment rendered in this cause, from which this appeal was taken, and to issue another writ of ad quod damnum directing the sheriff! of Lewis county to summons another jury to go upon the premises in controversy and ascertain the value according to law of the land, etc., sought to be condemned in this proceeding in fee or for twenty years, giving appellant or his committee for him the right to elect whether said property shall be condemned for twenty years, or in fee, or at all, and require said sheriff to report the verdict of the jury to some subsequent term of said court.”

Appellant having requested the court to state the facts upon which its judgment is based found the following facts:

“The court finds that the plaintiff, EL L. Wilson, was at the time of the verdict of the jury under the writ of ad quod damnum, and since of such unsound mind as to prevent his exercising reasonably the right of election he had as to whether condemnation in this cause should be for twenty years or in fee, and of such unsound mind at the time of the rendition of the judgment in the County Court that there was no election made.”

Appellant’s motion for a new trial having been overruled, he has appealed to this court. The contention of appellant is that the Circuit Court could not hear any testimony on the trial of an appeal, except such as was transmitted from the County Court, and also inasmuch as he had no notice of any mental defect of Wilson at the time of the judgment complained of, that the judgment should not be disturbed, and that the evidence failed to show such mental incapacity upon the part of Wilson as1 would authorize the judgment to be set aside.

Section 2 of chapter 42, of the General Statutes, provides that an appeal from any order concerning ferry or ferry rates in favor of any one interested shall lie to the Circuit Court of the county and thence to the Court of Appeals, both of which shall have jurisdiction of law and facts,but the Court ■of Appeals only of such facts as shall be certified from the Circuit Court.

It would seem from the foregoing that the Circuit Court was authorized to hear evidence in addition to the evidence certified from the County Court; it therefore follow® that the Circuit Court did not err in the admission of the testimony excepted to by appellant.

The proceedings in the County Court seem to be regular and not subject to be set aside or reversed for any reason except the fact as found by the Circuit Court. It must be conceded that the testimony heard in the Circuit Court tended strongly to establish the mental incapacity of said Wilson, and if in fact he was not competent to elect whether said property should be condemned'for twenty years or in fee, his committee or real representative should be permitted to make the election.

We understand thejudgment of the Circuit Court, when properly considered, to mean a reversal only of the judgment confirming the verdict of the jury returned under the writ of ad quod damnum, and directing that a new writ be issued, and the proceedings of the condemnation to be had as though no verdict had ever been rendered, and that the parties entitled to the election be permitted to elect whether the condemnation should be for twenty years or in fee, and upon their failure to elect, condemnation will be in fee. It does not appear that the circuit court gave any weight to the testimony as to the value of the land condemned, or the proper manner of estimating the value thereof, hence we need not express any opinion as to that question.

Judgment affirmed;  