Smith v. McMeekin

79 Ky. 24, 1 Ky. L. Rptr. 259, 1880 Ky. LEXIS 81

• Court: Court of Appeals of Kentucky
• Decided: September 15, 1880
• Status: Published

Opinions

■JUDGE PRYOR

delivered the opinion of the court.

The appellant instituted proceedings in the Scott county •court to enable him to erect three gates across the public road leading from Russell’s school-house to the Georgetown and Paris turnpike. The appellee interposed his objection to the granting of such a right, and the court on the hearing authorized the gates to be erected, from which an appeal was taken by the appellee to the court of common pleas, and that court, after hearing the case, remanded it back to the county court, with directions to dismiss the appellant’s application, from which judgment the appellant has appealed to this court. The principal objection to the action of the common pleas court is, that the latter court heard the case de novo, and in the same manner that appeals ■are heard when taken from quarterly and justice’s courts. We think the objection is well taken. This court, in the case of Helm v. Short, reported in 7th Bush, determined that the jurisdiction of the circuit court was appellate only,

. and reversed the judgment below. While the sections of ~ the Civil Code then in force, regulating appeals in such cases, are omitted from the present code, still the Revised Statutes-contained the same provision on the subject that is found in the General Statutes. The 43d section of the General Statutes, regulating appeals in road cases, provides that “the party aggrieved may prosecute an appeal within one year to the circuit court of' the county, which court shall have jurisdiction without a jury to try the law and facts oí the case.” With this same provision in the Revised Statutes, the court held that no original evidence could be heard by the circuit court on the trial of the appeal. In the case of Mitchell v. Hord, from the Carroll circuit, arising under the-General Statutes, and reported in nth Bush, it was held that the county court had no power, after the case had been decided and an appeal prayed, to amend the bill of exceptions at a subsequent term, thereby determining in effect that a bill of exceptions was necessary to enable the party to prosecute an appeal.

In road cases the parties in the circuit court are not entitled to a jury, while in cases of wills this right cannot be ■ denied them by the court; and while they may waive the right, it is further provided, “that the Court of Appeals-shall not hear any matter of fact pertaining thereto other than such as may be certified from the circuit court, clearly • implying that the circuit judge may hear original testimony in cases of wills; and the fact that the parties may have a. jury in such cases is conclusive óf the question. When a road case is taken to the circuit court, it is an appeal upon the law and the facts originating in the county court, and no evidence can be heard other than that found in the bill of exceptions. Original jurisdiction in road cases belongs exclusively to the county court, and the appellate juris- • diction of the circuit or common pleas court is confined to a. revision of the proceedings as they transpired below.

The judgment is therefore reversed, and cause remanded,, with directions, in the absence of a bill of exceptions, to> dismiss the appeal.