
    PLATTE COUNTY COURT vs. McFARLAND and others.
    1. The action of a county court, refusing to receive a report presented by commissioners appointed by the general assembly to survey and mark out a State road, is not a final judgment such as will sustain a writ of error.
    2. A mandamus is the proper proceeding to compel county courts to do their duty respecting roads.
    ERROR TO PLATTE CIRCUIT COURT.
    Almond for plaintiff.
    1st. The decision oT said county court was not and is not such a decision as will legally entitle a writ of error to lie from the circuit to the county court thereon. It was not and is not a judgment at all, and is no bar to the future presentation and reception of the same report by said county court. See Easton vs. Chambers 1 M. Up. 135.
    2d. It was certainly cruel thus to create a case in the circuit court against the £‘ Platte county court,” and it was evidently wrong to render judgment against defendant for an error of judgment, supposing one to have been committed.
    3d. There was no bill of exceptions filed in the county court, before the case arrived in the circuit court, to show upon what evidence or grounds the report was rejected. See Davis vs. Hays 1 M. R. p. 192.
    4th. The assignment of errors by McFarland and others in the circuit court, and the action of that court seem to imply that the county court ea-.necessitate ret, ought to have received and acted upon the report.
    5th. The commissioners, acting in a public capacity, and for the public, had no private right or interest affected by the decision of the county court, and had no right to their writ of error. And the question as to their pay was altogether a different question from the reception of the report. See Galloway vs. Overbeck & Shaw 10 M. R. 364.
    6th. The circuit court had no right to revise the decision of the county court in this case, and if the circuit court has any control over the county court in reference to this road, it can only be exercised by writ of mandamus, commanding the county court to receive said report.
    7th. If the precedent is established of taxing the county court with the costs in this case for a wrong decision, supposing it to be wrong, it might be extended to the cireuit courts, which would prove most disastrous.
    
      8th. But the county court decided correctly. For
    1st. If the evidence before the county court had been -'preserved, it would be seen that Shaw, the objector, had private rights affected, and his objections were sustained by proof. And
    2d. The private act of the legislature is no where preserved upon the record establishing said State road, but is found on page 334 of Laws of Missouri of last session of the legislature. And from the report it will be seen that only Bailey and Allen met as required by the second section of said act.-
    3d. Bailey and Allen then having met at the time and place designated in the second section of said act and complied with all its requirements, “ constituted a quorum, and were competent to perform the duties by said act assigned lo the three commissioners.” And
    4th. Ferrill, by failing to meet at the time and place, evidently lost his capacity as commissioner; it having centered in the other two who did thus meet.
    5th. Allen does not join in the report, but Ferrill at a subsequent day comes up after he was functus officio, qualifies and aids in appointing McFarland.
    6th Even supposing that Ferrill had a right to act as commissioner after he thus qualified, clearly he and Bailey had no right to appoint McFarland.
    7th. The special act gave them no authority to make such an appointment, and only upon failure of said commissioners or a majority of them to meet as required by the second section of said act, were they authorized to act under the general law. See seventh and last section of said act.5
    8th. McFarland and Ferrill then were not authorized to act as commissioners.
    9th. Said report is deficient in this that the pretended commissioners did not obtain a relinquishment of the right of way from various persons, nor did they legally assess the damages of those persons.
    10th. As the county of Platte had and has to foot all the damages as occasioned by the-iocation of said road, the county court did right in requiring the commissioner strictly to conform to the law. See Rev. Code page 972-973-974, sections 3,13,16.
    Wilson & Rees for defendants.
    Our first point is, the report is strictly correct and conforms to every requisition of the law. See Rev. Statute 504; Roads and Highways, art. 2, secs. 2, 3, 4, 5, 6, 7,8, 9,10,11, 12, 13, 14, 15,16,17,18, 19 to 36 inclusive.
    2d. The commissioners had such an interest as authorized them to appeal and litigate the case. The defendants had no such interest. See Gallaway vs. Sbaw § Overbeck, 10 Mo. Rep.
    3d. William B. Almond had no such interest! not even the color of pretence of interest, and consequently had no right to except to the opinion of the court. Nor had be a right to bring the case here by writ of error.
    4th. There is nothing in the motion ; the overruling of which is complained of and made the sole ground for exception. The court did right to overrule that motion.
    5th. The proper parties are not made on the record. Coleman Shaw is the only party. See the record.
   Scott, judge,

delivered the opinion of the court.

McFarland and others -being commissioners under an act of the last general assembly to survey and mark out a State road from Weston, in Platte county , to St. Joseph, in Buchanan county, made a report of' their proceedings to the county court of Platte county, and filed a report of their survey of the said road. This report for its alleged irregularity, was rejected by the court, and further- time was given to-the commissioners to make a report. On the coming on of this report certain objectors resisted it, and the court again refused to receive it. On this the commissioners sued out a writ of error from the circuit to1 the county court. The writ is directed to the justices of Platte county court. On the return of the writ, the cause is docketed as one-against the county court of Platte, and on the hearing of it, the judgment of the county court rejecting the report of the commissioners is: reversed, and a judgment for costs is rendered. On this judgment a writ of error was sued out from this court.

It is impossible to discover any principle on which the county court of Platte could have been made a party to the writ of error. The judgment of the circuit court itself shows the fruitlessness of the proceedings by writ of error; for after reversing the judgment of the county court, the parties are left just where they were before the writ was sued out, and the making of costs is the only effect of it.

When such consequences result from a procedure, it is obvious that it must be irregular. The action of the county court could in no sense ■ of the term be called a final judgment, such as will sustain a writ of error. The defects in the report or proceedings of the commissioners might have been obviated. A mandamus was obviously the proper proceeding to compel the county court to do its duty.

There being an error in the rendition of the judgment of the circuit court, and it appearing upon the record that it was unwarranted, by repeated decisions of this court, no motion was necessary in order to subject it to the revision of this court.

The other judges concurring, the judgment will be reversed.  