Wilhite v. Wolfe

Court of Appeals of Kansas

Wilhite v. Wolfe

90 Mo. App. 18, 1901 Mo. App. LEXIS 269

CourtCourt of Appeals of Kansas

DecidedJune 3, 1901

StatusPublished

Cited by1 cases

This text of 90 Mo. App. 18 (Wilhite v. Wolfe) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wilhite v. Wolfe, 90 Mo. App. 18, 1901 Mo. App. LEXIS 269 (kanctapp 1901).

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Opinion

SMITH, P. J.

The plaintiffs in error by their petition applied to tbe county court for tbe establishment of a public road. Tbe proposed road ran partly over the land of tbe defendant in error who refused to relinquish tbe right of way. Tbe court appointed commissioners to assess tbe damages. The defendant in error filed his written exceptions to tbe report of the commissioners and thereupon the court made an order for a jury to try the case anew. The damages assessed by the jury, and for which there was judgment, was the same in amount as that reported by the commissioners. The defendant prosecuted his appeal from that judgment to tbe circuit court. In tbe latter court the defendant in error there filed a motion to dismiss tbe proceeding for want of jurisdiction in the county court to make the several orders and judgments appealed from. This motion was sustained and a judgment given dismissing the proceeding and taxing all tbe costs incurred in both courts against tbe plaintiffs in error. The plaintiffs in error object [20]*20to the action of the court in adjudging the costs against them.

They set on foot the proceeding and if it failed for want' of jurisdiction, no reason is seen why they should not be liable for the costs incurred. It seems to us the objection is answered by section 1555, Revised Statutes 1899, which provides that where an appeal is taken from a county court and the judgment be reversed and the judgment of the appellate court be in favor of the appellant, the appellee shall pay the costs of both courts. If the proceeding had not been dismissed we could very well see how the ruling made by us in Smith v. Brashear, 67 Mo. App. 556, would be applicable. Where a cause is dismissed, as here, for want of jurisdiction to give the judgment appealed from, it seems to us that independent of the statutes that about the only judgment any court could give in respect to costs would be that given in this case.

We think the judgment should be affirmed.

All concur.

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SMITH, P. J.

The plaintiffs in error by their petition applied to tbe county court for tbe establishment of a public road. Tbe proposed road ran partly over the land of tbe defendant in error who refused to relinquish tbe right of way. Tbe court appointed commissioners to assess tbe damages. The defendant in error filed his written exceptions to tbe report of the commissioners and thereupon the court made an order for a jury to try the case anew. The damages assessed by the jury, and for which there was judgment, was the same in amount as that reported by the commissioners. The defendant prosecuted his appeal from that judgment to tbe circuit court. In tbe latter court the defendant in error there filed a motion to dismiss tbe proceeding for want of jurisdiction in the county court to make the several orders and judgments appealed from. This motion was sustained and a judgment given dismissing the proceeding and taxing all tbe costs incurred in both courts against tbe plaintiffs in error. The plaintiffs in error object [20]*20to the action of the court in adjudging the costs against them.

They set on foot the proceeding and if it failed for want' of jurisdiction, no reason is seen why they should not be liable for the costs incurred. It seems to us the objection is answered by section 1555, Revised Statutes 1899, which provides that where an appeal is taken from a county court and the judgment be reversed and the judgment of the appellate court be in favor of the appellant, the appellee shall pay the costs of both courts. If the proceeding had not been dismissed we could very well see how the ruling made by us in Smith v. Brashear, 67 Mo. App. 556, would be applicable. Where a cause is dismissed, as here, for want of jurisdiction to give the judgment appealed from, it seems to us that independent of the statutes that about the only judgment any court could give in respect to costs would be that given in this case.

We think the judgment should be affirmed.

All concur.

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Bluebook (online)

90 Mo. App. 18, 1901 Mo. App. LEXIS 269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilhite-v-wolfe-kanctapp-1901.

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