This is a proceeding instituted in the County Court of Wright County, to open a public road through land belonging to the appellant. The appellant claimed damages in the county court, but was allowed none, and judgment was rendered establishing the road. He appealed the case to the circuit court of said county, from which a change of venue was awarded him to the Circuit Court of Douglas County. In that court appellant moved to set aside and annul the judgment of the County Court of Wright County, because the record failed to show that said court had obtained jurisdiction of the subject-matter. This motion being denied, appellant duly appealed to this court.
The petition for the road states that it is signed by at least twelve duly qualified and competent adult petitioners, residents of, and in their own right owners of, land in the municipal township through which the road is to pass, and that three of them reside in the immediate neighborhood of the proposed public road. It purports to be signed by W.F. Borders and fifteen others, but appellant is not one of the signers. *Page 639
The order of the county court, upon the hearing of the petition, recites as follows: "In the matter of the petition of W.F. Borders et al. Petition for a public road. Now on this day, the court having taken up and fully considered the above named cause, hereby orders that W.R. Wood, County Highway Commissioner, proceed to view, survey and mark out such road thirty feet in width, described in the petition," etc. There is no finding or recital in the said order, or any other order, of the county court that the petition was signed by at least twelve or any freeholders of the municipal township or townships through which the proposed road was to run, or that three of them are of the immediate neighborhood. There are other recitals and statements omitted from the order of the court, which it is not necessary, in the view we take of the case, to consider.
It was not sufficient that the petition itself recited that it was signed by at least twelve freeholders of the municipal township, and that at least three of them were of the immediate neighborhood, as required by the statute under which the proceeding was brought (Laws 1913, p. 653). But the order of the county court made at the time or prior to the granting of the petition should show on its face that the court found that the petition was so signed. This was jurisdictional to the power of the county court to take the initial step of ordering the county engineer to mark out the road, and must affirmatively appear upon the face of the record of the county court. [Chicago Ry. Co. v. Young, 96 Mo. 39; St. Louis v. Glasgow, 254 Mo. 262.]
Many other defects in these proceedings are urged by appellant, which are unnecessary for us to review, as we have no doubt that if the proceedings are instituted again the law in all respects will be carefully complied with.
Judgment reversed and cause remanded with directions to the Circuit Court of Douglas County to sustain appellant's motion to set aside and annul the judgment *Page 640 and proceedings of the County Court of Wright County.
Brown and Ragland, CC., concur.