Myers v. Old Mission & Whitbeck Road

Wright, C. J.

Upon several grounds, this case must be reversed. Whether the road sought to be established is more or less than five miles in length, does not appear. If less, then the law requires that those petitioning for it, shall give security for the payment of all the expenses attending the establishment of the same. If more, the petitioners are to give security for the payment of the expenses, if the road is not finally established. Code, sections 521, 522. In either case, if a claim for damages shall be made, the claimant should be styled upon the record the plaintiff, and those petitioning for the road, the defendants; and in their names should the cause be conducted through its various stages. In this case, who petitioned for the road does not appear; nor is there any party defendant shown throughout the record. Nor is the suit prosecuted as an ex parte proceeding, but throughout, Myers, (who claims the damages), is styled the defendant, and the Old Mission and Whitbeek road, the defendant. The defendant, (thus named), is not a person, natural or artificial, against whom, or in whose favor, any judgment or order could be entered or made. Strictly, or regularly, therefore, there was no cause pending, of which the district court could take cognizance.

But if ■ it be claimed that this entitling of the cause, may be rejected, and that the plaintiff has a right to have it considered as an ex parte proceeding against the county for damages, there are still other difficulties in the way of his recovery in the district court. An appeal lies from all decrees and decisions of the county court, on the merits of any matter affecting the rights or interests of individuals, as distinguished from the public, including an intermediate order involving the merits, and necessarily *317 affecting the decree or decision. The appeal is taken by claiming the same, and filing a bond, within thirty days from the day on which the decision was made. Code, section 131. Now, it does not appear that the county court ever made any decision, awarding or denying damages to the plaintiff, on account of the establishment of this road. The only thing found in the record, which approaches an order involving the merits, and necessarily affecting the decree or decision sought, is the ruling out of certain testimony offered by plaintiff. But this does not appear to have been appealed from, for the cause was heard in the district court upon the merits, whereas the merits were never passed upon by the county court. Not only so, but there is nothing to show, that plaintiff ever claimed an appeal, or filed a bond, as required by law, either within thirty days after the decision was made, or at any other time.

Under these circumstances, we think the motion to dismiss the appeal should have been sustained, and the cause remanded to the county court. And whether, when thus remanded, the plaintiff can proceed, must depend upon his making proper parties.

Judgment reversed.