
    Jacob Fisher et al., Respondents, v. J. B. Davis, Appellant.
    Kansas City Court of Appeals,
    October 24, 1887.
    1. Opening of Road Under Act of 1883 — Necessary Averments of Petition. — In a proceeding for the opening of a new road, under the provisions of the act of 1883 (Laws Mo. 1883, p. 108), the statute does not require that the petition should contain the averment as to the necessary residence of the petitioners. It simply prescribes that the petition shall be “ signed by at least twelve freeholders of the municipal township, etc., through which said proposed road may run, three of whom shall be of the immediate . neighborhood,” and as to what the petition shall contain respecting the beginning, direction, etc., of the road. The qualification of the petitioners is a matter of evidence to be determined by the court on the hearing of the petition. But the record of the court should show affirmatively that the petitioners possessed the requisite qualification, without which its further proceeding is an absolute nullity. (This fact, the county court record, in this case, failed to recite). The fact of the required notice of intention to present the petition should also be found and appear of record.
    • 2. Jurisdiction — Proceedings of Inferior Courts Must Show. The jurisdiction of courts of inferior and limited power must appear somewhere on the face of the proceedings ; otherwise their acts are void.
    Appeal from Howard Circuit Court, Hon. GJ-eorge H. Btjrckhartt, Judge.
    
      Reversed and remanded.
    
    The case and facts are stated in the opinion of the court.
    Draeeen & Williams, for the appellant.
    I. Iu attempts to exercise the right of eminent domain, the utmost strictness is required ■ to give validity to the proceedings. The jurisdictional facts must appear upon the record. The record in this case did not show that the petitioners were of the immediate neighborhood; nor that notice of the application had been given as required by the statute. .The county ■court, therefore, had no jurisdiction. Acts 1883, p. 158, sects. 5 and 6; Zimmerman v. Snowden, 88 Mo. 218; WMtely v. Platte County, 73 Mo. 30 ; Colville v. Judy, 73 Mo. 657; Jefferson County v. Cowan, 54 Mo. 234; Blize v. Castlio, 8 Mo. App. 290.
    II. If the bounty court had no jurisdiction the circuit court acquired none by the appeal. Its jurisdiction was appellate only. Haggard v. Railroad, 63 Mo. 302; Gist v. Loring, 60 Mo. 487.
    ITT. The jurisdictional facts could not be supplied by evidence dehors the record. The testimony offered'in the circuit court could not make good the defect in the record. “It was held by the Supreme Court, in Jefferson County v. Cowan (54 Mo. 237), that the county court has no jurisdiction in the premises unless these facts appear in the petition or in the record, and that when they do notj appear • the petition should be dismissed in the circuit court.” Blize v. Castlio, 8 Mo. App. 290.
    IV. (1) An amendment could not be made in the circuit court, so as to give jurisdiction, where the county court had none. The attempted amendment conferred no additional authority. See Cist v. Loring, 60 Mo. 487; Haggard v. Railroad, 63 Mo. 302; McQuoid v. Lamb, 19 Mo. App. 153. (2) Section 3060 has no application to appeals from the county court. This was enacted in 1879. The appeal in the case at bar is governed by the laws of 1877. See Rev. Stat., 1879, sect. 1210. There is no provision for amendments in such cases. McQuoid v. Lamb, 19. Mo. App. 153 ; State v. Russell, 88 Mo. 648. The law governing appeals from the county court is the same now, as when the cases of WMtely v. Platte County (73 Mo. 30), and Colville v. Judy (73 Mo. 650), were decided. So far as appeals from the county court are concerned, the law is now in regard to amendments as declared in Gist -o. Loring (60 Mo. 487).
    V. Again, the county court had previously caused the damages to be assessed, as -to part of the land owners, and on the seventh of August, 1885, established the road and ordered it opened. It had no jurisdiction after the lapse of that term to re-open the case and proceed to condemn the appellant’s land. Its judgment of July, 1886, was coram non judice. Blize v. Gastlio, 8 Mo. App. 290 ; Bloss v. Tacke, 59 Mo. 174. The appellant’s land not having been properly condemned the proceedings were an entirety, and should have, been dismissed.
    YI. The judgment entered by the court below was certainly unwarranted, in that it required the appellant to remove his fences from the line of the road in thirty days. The statute does not authorize such judgment. See Acts of 1883, p. 160, sect. 9.
    A. J. Heendok and T. Shackleeoed, for the respondents.
    I. The authorities cited by the appellant’s counsel are based upon the law as it existed prior to the revision of 1879. Section 1210, Revised Statutes, 1879, provides that appeals from the county court shall be prosecuted in the same manner as appeals from justices’ courts ; and section 3060 provides how such appeals may be taken and prosecuted.
    II. The amendment, in the case at bar, added go new facts, but merely stated that the three persons who originally signed the petition resided in the immediate neighborhood of the proposed road, and that the notices were duly given, and the court found these facts to be true, on the trial of the cause,. and in the judgment declared all the facts to be true which gave jurisdiction to •open the road.
    III. The appellant, being a party to the record is bound by the judgment. Vaughan v. Railroad, 17 Mo. App. 4 ; King v. Railroad, 79 Mo. 328.
   Philips, P. J.

This proceeding originated in the county court for the opening of a new road. It was subject to the provisions of the road law enacted in 1883. Laws Mo. 1883, p. 158. The record shows, if not an irregular course of procedure, at least, a most unusual one.

The petition was presented to the county court at the November term, 1884, when the court made an order that the road commissioner proceed to survey and mark out said road, and make report to the court thereof according to law. At the following term, February,, 1885, the commissioner made report, representing that H. Besgrove and B. F. Johnson, through whose land the proposed road would run, refused to relinquish the-right of way; the court appointed commissioners to-assess the damages, and make report. At the following-May term the commissioners filed their report, and the-court made a provisional order that the road be established when the petitioners paid into court the damages awarded to the non-assenting land owners. At the following August term the court made an order, reciting the payment of the damages, assessed as aforesaid, and ordered the road overseer to notify all persons to remove their fences in the way of the' road. The year following,, on the nineteenth day of July, 1886, the record shows-that J. A. Bryan and James B. Davis, the appellant herein, through whose land the proposed road ran, had not relinquished the right of way.

The court thereupon appointed certain other commissioners to view the premises and assess the damages, and make report. At the August term following the commissioners filed their report, and the said Bryan and Davis failing to make any objection thereto, the court ordered the road opened within thirty days ; and Bryan and Davis were ordered to remove their fences from the-roadway within that time. Davis appeared and objected to this order, on the ground that the court had no jurisdiction to make the same.

Davis appealed to the circuit court, where he filed a motion to dismiss the proceedings, on the grounds that the county court had no jurisdiction to make the order appealed from; that it did not appear, from the petition or the record of the county court, that the petition for the establishment of the road was signed by at least twelve freeholders of the municipal township or townships through which said road runs, three of whom are of the immediate neighborhood of said proposed road; nor did it appear, from the record, of the county court, that the required statutory notice had'been given.

Pending this motion, the petitioners were permitted by the circuit court, over the objection of the appellant, to amend the petition, so as to show that at least three of the petitioners were freeholders resident in the township, and resided in the immediate vicinity of the road. On the hearing of the cause, the petitioners made proof, against the objection of appellant, that the signers of the petition were resident freeholders, as required by the statute, and that the requisite statutory notice of the intended application to the county court for the opening of the road was given. The petitioners also read in evidence the report of the road commissioner, and accompanying plat. The motion to dismiss was overruled, and Davis has appealed to this court.

I. It is not necessary to the determination of this case that we should pass upon the question raised, and pressed upon our consideration by appellant, as to the right of the petitioners to amend the petition in the circuit court, as we are of opinion such amendment was not essential to validate the petition. We do not think the statute authorizes the construction that the petition itself should contain the averment as to the necessary residence of the petitioners. The statute simply prescribes that the petition shall be “signed by at least twelve freeholders of the municipal township, etc., through which said proposed road may run, three of whom shall be of the immediate neighborhood.” The section then proceeds to state what the petition itself shall contain, respecting the beginning, direction, etc., of the road. As the act of signing follows the petition, we can find no warrant for the assumption that the qualification of the petitioners must be recited in the body of the petition. That is a matter of evidence to be determined by the court, on the hearing of the petition.

II. But as the requirement as to the residence of the petitioners is in the nature of a jurisdictional fact, which must be found by the county court before it can proceed to take jurisdiction over the subject-matter, the record of that court should show affirmatively that the petitioners possessed the necessary qualification, without which its further proceeding is an absolute nullity. Jefferson County v. Cowan, 54 Mo. 234; Colville v. Judy, 73 Mo. 651; Whitely v. Platte County, 73 Mo. 30; Zimmerman v. Snowden, 88 Mo. 218; Blize v. Castlio, 8 Mo. App. 290. This fact the county court record failed to recite.

III. The fact of having given the required notice of intention to present the petition should also be found and appear of record in the county court.

IV. • The only remaining question, of importance to the determination of this case, is, did the circuit court acquire such jurisdiction by the appeal as to authorize it to proceed, de nono, to hear the case on its merits, and find the essential facts, disregarding these errors in the record of the county court %

I am free to say that if this question were res nona, and its determination should rest with me, I should hold that such defect in the proceedings of the lower court would not oust the circuit court of its jurisdiction on direct appeal, where it was made to appear on the trial de nono that the essential fact did exist, and it was an omission on the part of the- lower court to recite it in the record. This, because section 36 of the road law (supra) declares that, “in all cases of appeals being allowed from the judgment of the county court, assessing damages, or for opening, changing, or- vacating any road, the circuit court shall be possessed of the cause,, and shall proceed to hear and determine the same anew.” And because section 1210, Revised Statutes, declares that: “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 cause had originated in such appellate court, without regarding any error, defect, or informality in the proceedings of the county court.” I think it would better' comport with the spirit of the laws, and our liberal system of practice respecting the proceedings of these inferior courts not presided over by men learned in the law, to-regard the omission of such facts from the county court record, in cases of direct appeal from the judgment of the county court, as errors and defects within the intendment of the legislative act ; and the circuit court should proceed to hear the case anew, and decide it according to the existence or non-existence of the essential facts. But the Supreme' Court have ruled otherwise, as we conceive ; and we must follow its course. Haggard v. Railroad, 63 Mo. 303; Gist v. Loring, 60 Mo. 487; Whitely v. Platte County, supra; McQuoid v. Lamb, 19 Mo. App. 153, 156; and authorities supra.

It results that the motion of appellant to dismiss the proceedings should have been sustained. The judgment of the circuit court is, therefore, reversed, and the cause remanded, with directions to proceed conformably to. this opinion.

All concur.  