author: GANTT, J.

text:
    ABIGAIL JACKSON et al., Appellants, v. ARCHIBALD V. LITTELL.
    Division Two,
    July 14, 1908.
    1. WILL: Rule of Construction: Fee Simple: Limited by Subsequent Devises. The cardinal rule in the interpretation of a will is that the intention of the testator as gathered from the whole instrument shall control; hut going along with that statutory rule is also the settled law that when the words of a will at the outset clearly indicate a disposition in the testator to give the entire interest, use and benefit of the estate devised absolutely to the first donee, that estate will not be cut down to a less estate by subsequent or ambiguous words inferential in their intent.
    2. - — : -: -: -: Power of Sale: Gift. The first clause of the will read: “I give, devise and bequeath to my beloved wife, Catherine Littell, her heirs and assigns, forever, all my property, real and personal, of what nature and kind soever, and wherever the same shall be at the time of my death, with privilege of selling or conveying by deed.” By subsequent clauses the testator gave five dollars to each of four daughters and two hundred to each of three other daughters, and the balatice on the death of the wife to a son. The wife thereafter made a deed giving to the eight daughters the real estate, share and share alike, subject to a life estate reserved for herself. ffeld, that by the first clause the testator devised the-entire estate absolutely to his wife, and the limitation over to the son was void, and the deed of the wife conveyed the title to the daughters.
    3. -: -: -: Heirs and Assigns. The words “heirs and assigns” are not necessary to create a devise of a fee simple, yet they were words that were necessary at common law, and no- more suitable words can be chosen by a testator to create a fee simple in a donee than “to her, her heirs and assigns forever.”
    4. -: -: -: -: Power of Sale. And when to the words, “to hei, her heirs and assigns forever,” are added the word's, “with privilege of selling or conveying by deed,” the added power carries with it a full property interest in the estate.
    Appeal from Jackson Circuit Court. — Eon. J. E. Slover, Judge.
    Reversed and remanded {with directions).

      J. N. <B A. C. 'Southern for appellants.
    (1) If the testator devise a fee simple or generally to the first taker with an absolute power of disposal in him, and there is neither by express words or implication a mere life estate created in the first taker, all subsequent grants in the will must fail, because repugnant to the first grant and because it conflicts with a settled rule of law. Roth v. Rauschenbush, 173 Mo. 592; Grace v. Perry, 197 Mo. 564; Green v. Sutton, 50 Mo. 186; G-annon v. Pauk, 200 Mo. 75. (2) The title to the real estate conveyed by the deed would be valid, even though in construction of the will from the £ £ four corners” the estate devised to Catharine Littell should be held to have been a life estate, because there was a power of sale or conveyance by deed added, and it is not denied that such deed was executed by Catharine Littell and delivered to all the plaintiffs. This doctrine is sustained by all the authorities.

      John W. Clements for respondent.
    (1) There is no principle of law more fully established in this State than that “the cardinal rule in the interpretation of a will is that the intention of the testator as gathered from the whole instrument shall control.” McMillan v. Farrow, 141 Mo. 55. And that the intention of the testator “is not to be gathered from single words, passages or sentences, but from a consideration of the whole instrument taken together in its general scope and design. ’ ’ Russell v. Eubanks, 84 Mo. 82; Turner v. Timberlake, 53 Mo. 371; Gaines v. Fender, 57 Mo. 342; Smith v. Hutchison, 61 Mo. 83; Allison v. Chaney, 63 Mo. 279; Long v. Timms, 107 Mo. 512; Watson v. Watson, 110 Mo. 164; Murphy v. Carlin, 113 Mo. 112; Redman v. Barger, 118 Mo. 568; Lewis v. Pitman, 101 Mo. 281; Munro v. Collins, 95 Mo. 73; Harbison v. James, 90 Mo. 411; Bean v. Kennuir, 86 Mo. 666;. Smith v. Bell, 6 Peters 68; Anderson v. Hall and Crawford v. Hall, 80 Ky. 91. The intention of the testator, Archibald Littell, deceased, as gathered from the entire will, unquestionably was to give his- wife, Catharine Littell, only a life estate therein, coupled with the power of sale, with the remainder over to the devisees named in the will and in the proportions named in the will. (2) “The power of sale, or disposal superadded to a life estate, if not exercised does not enlarge the life estate into a fee; and in such case the remainder over is valid and at the death of the life tenant takes effect in the remainderman.” Harbison v. James, 90 Mo. 411; Ruby v. Barnett, 12 Mo. 3; Reinders v. Koppelmann, 68 Mo. 482; Russell v. Eubanks, 84 Mo. 83. (3) Nor is it necessary that the life estate be created in express terms. If it is the clear intention from the whole will that the first taker is to have but a life estate, then the added power of disposition will not convert the estate into one of absolute ownership. Lewis v. Pittmann, 101 Mo. 281; Redman v. Barger, 118 Mo. 568; Russell v. Eubanks, 84 Mo. 82; Schorr v. Carter, 120' Mo. 409. (4) The widow, Catharine Littell, in the exercise of her “privilege of selling or conveying by deed,” given her by the terms of the will of testator, was in a sense the trustee of the remaindermen, and as such trustee it was her duty to exercise good faith. Rose v. McHose’s E'xeoutors, 26 Mo. 590; Burford v. Aldredge, 165 Mo. 419; Underwood v. Cave, 176 Mo. 1.
   GANTT, J.

This is an action begun in the circuit court of Jackson county to construe the last will and testament of Archibald Littell, deceased. The case was tried upon the following agreed statement of facts:

“Plaintiffs and defendant by their respective attorneys hereby stipulate and agree as follows:
“1. That Archibald Littell died on the — day of July, 1903, testate, seized and possessed of the real estate described in the petition, leaving as his heirs and devisees his widow, Catharine Littell, and his children, the plaintiffs and defendant in the above-entitled cause.
“2. The said decedent made and executed his last will and testament which was on the 10th day of August, 1903, dqly admitted to probate in the probate court of Jackson county, Missouri, at Independence, a true copy of which is as follows:
“ ‘Realizing the uncertainty of life, I, Archibald Littell, of the county of Jackson, and State of Missouri, make this my last will and testament while in possession of sound mind and memory, this the 6th day of March, in the year of our Lord, one thousand eight hundred and eighty-first.
“ ‘I give, devise and bequeath to my beloved wife, Catharine Littell, her heirs and assigns, forever, all of my property, real and personal of what nature and kind soever and wherever the same shall be at the time of my death, with privilege of selling or conveying by deed.
“ ‘Second. I bequeath that at the death of my wife, Catharine, my four daughters, Sarah E. Long, Abigail Jacksonj Martha King, and Mary E. Mnlford, shall each have five dollars and my three daughters, Bebecea Chiddix, Bachel Chiddix and Lucinda Littell each shall have two hundred dollars.
“ ‘Third. It is also my will and desire that at the death of my wife or at any time she may arrange to relinquish her interest in said property, the same may revert to my son, Archibald Y. Littell, after my daughters shall have received each their portion as stipulated in the second section of my will.
“ ‘Fourth. It is my will that my wife shall be executrix of this my last will and testament. My will is also that my said wife shall not be required to give any bonds or security to the judge of the probate court for the faithful execution of the duties of executor.
“ ‘Witnesses: John Stonehouser.
C. C. Latimer.
“ ‘Archibald- Littell, (Seal.)’
“3. That on the 10th day of August, 1903, the widow of decedent, the said Catharine Littell, executed her warranty deed to the plaintiffs and defendant purporting to convey to them the land in controversy as specified in said deed, a true copy of which is as follows:
“ ‘ Warranty Debu. This indenture made on the 10th day of August, 1903, by and between Catharine Littell, widow of Archibald Littell, deceased, of the county of Jackson, State of Missouri, party of the first part and Sarah E. Long, Abigail Jackson, Martha King, Mary E. Mnlford, Bebecca Chiddix, Bachel Chiddix, Lucinda Littell and Archibald V. Lit-tell of the county of Jackson, State of Missouri, parties of the second part. Witnesseth: That the said party of the first part in consideration of one dollar and natural love and affection to her paid by the said parties of the second part, the receipt of which is hereby acknowledged, does by these presents grant, bargain and sell, convey and confirm unto the said parties of the second part, their heirs and assigns, the following described tracts and parcels of land lying, being and situated in the county of Jackson, State of Missouri, to-wit. All the west one hundred and twenty-one acres of the northeast quarter of section six, township forty-nine, and range twenty-nine, except one acre in the northwest corner thereof, grantor reserving a life estate to herself in said property, the remainder in fee in said real estate is to vest in said grantees, the same being children of the grantor, as tenants in common, share and share alike, except that on a partition of the same the following parties shall receive the following amounts respectively, before the remainder is divided equally between said grantees, viz., Lucinda Littell, four hundred dollars, and Rachel Chiddix, Rebecca Chiddix and Archibald Littell, two hundred dollars each.. To have and to hold the premises aforesaid, with all and singular rights, privileges, and immunities thereto belonging, or in any wise appertaining unto the said parties of the second part and unto their heirs and assigns, forever, the said grantor hereby covenanting that she is lawfully seized of an indefeasible estate in fee in the premises herein conveyed; that she has good right to convey the same; that the said premises are free and clear from any incumbrance done or suffered by her, or those under whom she claims, and that she will warrant and defend the title in the said premises unto the said parties of the second part and unto their heirs and assigns, forever, against the lawful claims and demands of all persons whomsoever. In witness whereof, the said party of the first part has hereunto set her hand and seal the day and year first above written. Catharine Littell, (Seal.)’ Deed acknowledged on August 10th," 1903. Recorded August 10th, 190’3, in Book 246, at page 246, Recorder’s office, Independence, Missouri.
“4th. That the personal property of said estate was not more than the widow was entitled to under the statutes, and that none of the real estate will be needed to pay debts of the testator.
“5th. That the real estate described in the petition was all the real estate owned by decedent at the time of his death.
“6th. That Catharine Littell, at the time of the execution of the deed and the probate of the will, August 10th, 1903, was about eighty-two years of age and physically in feeble health; that said Catharine Littell and the testator, Archibald Littell, deceased, lived together as husband and wife, for about fifty-seven years and raised a family of eight children, the plaintiffs and defendant, the youngest being a daughter, Lucinda, aged about forty years, living at home and unmarried. ’ ’

In'an instruction given by the court of its own motion, it construed the said will as follows:

“Under the will of Archibald Littell, deceased, his wife Catharine Littell, took only a life estate in the real estate in controversy herein, coupled with a power of sale of said real estate, and at her death said real estate or proceeds thereof pass under the will of said Archibald Littell to the devisees therein named, who if they survive said Catharine Littell, will at her death take the remainder in said real estate or in the proceeds of sale thereof, if sold by said Catharine Littell in her lifetime in the following proportions, to-wit: Sarah E. Long, Abigail Jackson, Martha King and. Mary E. Mulford, five dollars, Rebecca Chiddix, Lucinda Littell and Rachel Chiddix, now Rachel Ash-craft, each the sum of two hundred dollars, and Archibald Y. littell the balance of said property;” and that the deed of gift of said real estate executed by the said Catharine Littell August 10th, 1903, introduced in evidence, is null and void; and on the 20th day of 'January, 1905, the court gave judgment in accordance with said declaration of law in favor of the defendant Archibald Y. Littell.

In due time and regular form the plaintiffs filed their motions for new trial and in arrest of judgment, which were heard and overruled and exceptions duly saved.

I. Again we have the old question of whether tbe will of Archibald Littell granted a fee simple title to his wife, or whether he gave her merely a life estate therein with power to sell or convey the same. The canons of construction of wills have been so often iterated and reiterated that it is unnecessary to repeat them. It goes without saying that the cardinal rule in the interpretation of a will is that the intention of the testator as gathered from the whole instrument shall control. But along with this statutory, rule in this State it is also the settled law that when the words of a will at the outset clearly indicate a disposition in the testator to' give the entire interest, use and benefit of the estate devised absolutely to the first donee, that estate will not be cut down to a less estate by subsequent or ambiguous words inferential in their intent. Now the first clause of this will is as follows: “I give, devise and bequeath to my-beloved wife, Catharine Littell, her heirs and assigns, forever all my property, real and personal, of what nature and kind soever, and wherever the same shall be at the time of my death with privilege of selling or conveying by deed. ’ ’ It would be difficult indeed to find words better adapted to create an absolute fee simple title in Mrs. Littell than this language indicates. These words carry not only the fee simple title in the lands but a perfect title to the testator’s personal estate of every kind and character.

While the words “heirs and assigns” are not necessary in this State to create a devise of a fee simple, they were words that were necessary at common law, and no more suitable language could have been chosen by the testator to emphasize his intention to give his wife his whole estate absolutely. As said by Judge Black, in Chew v. Keller, 100 Mo. l. c. 370, “Stronger language oould not have been used to show and disclose a purpose and intent to confer upon Levin Baker and the other named person an absolute and unconditional fee. The estate is given to ‘ them and their heirs forever.’ This expression, though unnecessary to create a fee,, is an appropriate one for that purpose; and that the word ‘heirs’ is here used in its ordinary legal sense as one of limitation only cannot be doubted. ’ ’ And when in addition to these words is added the provision, “With the privilege of selling or conveying by deed,” this added power carried with it a full property interest in the estate.

It was said at an early date in this State in Rubey v. Barnett, 12 Mo. l. c. 6: “It has always been held that an absolute power of disposition over property conferred by will, not controlled by any provision or limitation, amounted to an absolute gift of the property. A power to dispose of a thing as one pleases, must necessarily carry along with it a full property in it.” To the same effect are Green v. Sutton, 50 Mo. 186, and Tremmel v. Kleiboldt, 75 Mo. 255. In Yocum v. Siler, 160 Mo. l. c. 289, it was said: “By the words ‘bequeath absolutely,’ he unquestionably intended to devise to his son his whole estate in said lands. These words are ample for that purpose in a will, and it is unnecessary to cite precedents to establish that it has been often so held.”

But it is strongly insisted by the learned counsel for the defendant, Archibald V. Littell, that the subsequent provisions of the will clearly indicate, notwithstanding the plain and sufficient words which were used in the first item to create a fee simple, it was the intention of the testator to give his wife only a life estate, and numerous cases have been cited from our own decisions to support this contention. But we understand that it is settled law in this State that where an estate is devised to one and his heirs and assigns forever, and there is added either by express words or by plain implication an absolute power of alienation, the limitation over is void. In 2 Redfield on Wills (3 Ed.), page 277, it is said: “It is a settled rule of American as well as English law that when the first devisee has the absolute right to dispose of the property in his own unlimited discretion, and not a mere power of appointment among certain specified persons or classes, any estate over is void, as being inconsistent with the first gift.” And in Gannon v. Albright, 183 Mo. l. c. 252, it was added: “Void as a remainder, because of the preceding fee, after which a remainder cannot be limited. Void as an executory devise, because a valid executory devise cannot subsist under an absolute power of disposition in the first taker.” Thus, Chancellor Kent says, vol. 4 (14 Ed.), 270, “If, therefore, there be an absolute power of disposition given by the will to the first taker, as if an estate be devised to A in fee, and if he dies possessed of the property without lawful issue, the remainder over, or remainder 'over the property which he, dying without heirs, should leave, or without selling or devising the same; in all such cases the remainder over is void as a remainder, because of the preceding fee; and it is void by way of executory devise, because the limitation is inconsistent with tbe absolute estate or power of disposition expressly given or necessarily implied by tbe will.” In support of this, proposition, tbe authorities are collated in Gannon v. Albright, supra, page 252.

By the will in this case, not only did the testator by apt and appropriate words devise to his wife an absolute fee simple estate in the lands in controversy, but superadded thereto an unqualified privilege of selling or conveying by deed. But moreover, he made no further grant of the estate over to any other person or persons, unless it can be said that the second and third items of the will were intended to cut it down to a less estate thereby. But as we have already seen, it is the settled law of this State that when the words of a will at the outset clearly indicate a disposition in the testator to give the entire interest, use and benefit of the estate devised, absolutely to the first donee, that estate will not be cut down to a less estate by. subsequent or ambiguous words inferential in their intent. Now clearly, we think, there is nothing in the second clause of the will which indicates any such purpose on the part of the testator, and if we look to the third clause, it is only by inference that such was the intention of the testator and hence the rule, already adverted to, would prevent the taking effect of such devise over if the language of the third clause can be so construed. That clause is ambiguous in itself and falls clearly within the prohibition of the general rule, which forbids the cutting down of the estate so clearly and positively granted to the wife, in the first item of the will, by such subsequent and ambiguous provisions in the will. While, as already said, the great purpose of a court in construing the will of a. testator is to ascertain his intention, it is of prime importance that well-recognized legal rules of construction should be observed to the end that the titles to real estate should not he left in doubt. If we are to adhere to the rule so often announced by this court, that the devise of an estate generally or indefinitely with a power of disposition over carries a fee, and that there is a broad distinction between those cases where there is a devise generally or indefinitely with a power of disposition and those cases where there is a devise for life with a power of disposition, we see no escape from holding that Mrs. Littell took an absolute fee in the estate of her husband with a superadded power of disposition, and if the other items of the will are to be construed as an attempt to make a devise or devises over, they were void, and of no effect. [Green v. Sutton, 50 Mo. 186; Reinders v. Koppelmann, 68 Mo. 482; Cook v. Couch, 100 Mo. 34; Roth v. Rauschenbusch, 173 Mo. l. c. 582.]

In Small v. Field, 102 Mo. l. c. 127, it was said by this court: “It is obvious that the absolute estate in fee granted to Mrs. Kate Greene could not be impaired, cut down or qualified except by words as affirmatively strong as those which conveyed the estate to hex*. ’ ’ Axxd to the same effect is Roberts v. Crume, 173 Mo. 572. Applying the rule announced in,Small v. Field, supra, which has often been reiterated by this court, we look in vain in this will for any words as affirmatively strong or even approximating those which Archibald Littell used in devising his estate to his wife.

It necessarily follows that, in our opinion, the learned circuit court erred in adjudging that Mrs. Littell only took a life estate in the property of her husband, and should have held that she took a fee simple estate therein with full power to sell and convey the same, and having an unlimited power to sell or convey, she had the perfect right to make the deed of conveyance to her children, which the court adjudged void.

Accordingly the judgment of the circuit court of Jackson county is reversed and the cause remanded with directions to the circuit court to enter a judgment or decree in accordance with the prayer of- the petition.

Fox, P. J., and Burgess, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    In Re ALBERT SIDWELL et al., Appellants, v. GEORGE W. JETT.
    Division Two,
    July 14, 1908.
    1. PRACTICE: Amendment of Record: Public Road: Untimely Appeal: Amendment in Supreme Court. The Supreme Court will not permit appellant to correct the record of the county court filed in the circuit court, so as to show that his appeal from the order of the county court establishing a public road was taken within the ten days permitted by statute. To amend the record in that way, where the appeal to the Supreme Court is from the judgment of the circuit court, would be to present matter to the Supreme Court which was not before the circuit court and might present for adjudication a wholly different case from that which was before the circuit court when it rendered its judgment.
    2. PUBLIC ROAD: Untimely Appeal: No Jurisdiction. The circuit court has no jurisdiction of a proceeding to establish a public road, unless an appeal is taken from the order of the county court within ten days after the judgment of the county court establishing the road, etc. The county court has original jurisdiction of the proceeding, and the circuit court can obtain jurisdiction only by an appeal taken within ten days.
    3. -:-:-: Appearance: Waiver. Nor does the fact that the petitioners for the road appear in the circuit court in response to a defendant’s appeal waive the matter of jurisdiction where thq appeal was not taken with the time allowed by statute. The circuit court has no jurisdiction over the subject-matter unless the appeal is taken within such time.
    4. -: -:-: Dismissal. Where the circuit court had no jurisdiction over the appeal from the order of the county court establishing a public road, for that the appeal was not taken within the time allowed by statute, its judgment dismissing the petition and quashing the proceedings of the county court is without authority of law.

      Appeal from Pike Circuit Court. — Now. David N. Eby, Judge.
    Reversed.

      J. E. Thompson for appellants.
    The county court made the order opening the road February 15> 1904. Jett filed his affidavit and took his appeal from the order May 2, 1904, seventy-six days thereafter. The appeal was not taken within proper time. Secs. 1788, 4060, R. S. 1899; St. Louis v. Gunning Co., 138 Mo. 355; Robinson v. Walker, 45 Mo. 117; Kelm v. Hunkier, 491 Mo. App. 664; Moulder & Simpson v. Anderson, 63 Mo.- App. 34; Devore v. Staeckler, 491 Mo. App. 547. County courts have exclusive original jurisdiction of road cases. The circuit court has only appellate jurisdiction. The appeal in this case not having been taken in the ten days prescribed by statute, the circuit court acquired no jurisdiction of the subject-matter, and neither has this court jurisdiction of the subject-matter, wherefore Jett’s appeal from the county court should be dismissed.

      J. N. Blair for respondent.
    The appeal from the county court was taken within the time required by law. While the transcript of the proceedings in that court states that the judgment establishing the road (if it can be considered to have that effect) was rendered on February 15,1904, yet the preceding entry shows that on February 6, 1904, the cause was continued to £ £ Tuesday, February 15,1904,” and by consulting the calendar, it will be found that the 15th day of no months of that year fell on Tuesday— except the months of March and November. The transcript was filed in the circuit court May 25, 1904, so on the face of the record it is apparent that the date £ £ February 15th, 1904” appeariug in said transcript is an error or misprision on the part of the county clerk. In fact, the records of the county court state that said judgment was rendered March 15, 1904. Respondent has heretofore filed in this court a motion, accompanied with a true, correct and certified copy of said judgment entry and the date theredf,*and the certificate of Lem T. Patterson, the then clerk of said county court, showing such to he the fact, and asking that he be permitted, under the provisions of sections 670', 672 and 673, Revised Statutes 1899, to amend his said return of said transcript in that particular. Blaisdale v. Steamboat, 19 Mo. 158; Weil v. Simmons, 66 Mo. 617; Holtschneider v. Railroad, 107 Mo. App. 381. While the record of the county court, as contained in the hill of exceptions, states that the affidavit for an appeal and appeal bond were filed in that court May 2, 1904, in fact, they were so filed March 24, 1904, and within ten days after the rendition of said judgment, and were, together with the transcript and appeal, returned to and filed with the clerk of the circuit court May 25, 1904, by the county clerk. It is sufficient if jurisdiction appears from the entire record of the proceedings, and may he shown hv the papers or cause of action. Sutton v. Cole, 155 Mo. 206; Curtis v. Tyler, 107 Mo. App. 345. Where there is a conflict between the recitals in the hill of exceptions and the record proper, the latter must and does control. Ricketts v. Hart, 150 Mo. 64. So the record establishes that the appeal was taken in time, under the provision of section 4066, Revised Statutes 1899, which applies to road cases. Williams v. Kirby, 169 Mo. 629.
   GANTT, J.

This is an appeal from a judgment of the circuit court of Pike county dismissing a proceeding to establish a public road in said county.

The proceeding began by the posting of notices of the presentation of the petition for said road as required by statute. Afterwards on February 2, 1903, tbe petition signed by Albert Sidwell, William Baker and twenty-three other resident freeholders of Buffalo and Quivre townships was presented to the county court and proof of the posting of the notices made. No remonstrance was filed and the county court, after hearing the evidence as to the utility of the road, made its order that the county surveyor and ex-oficio road commissioner, mark out, view and: survey the proposed road and make his report at the next term of court. At the succeeding May term, 1903, the commissioner made his report, from and by which it appeared that he had obtained the right of way for the- road from all the land-owners except Mrs. Carr, Misses Bailey and Alton Walker, whereupon the court appointed W. T. Farmer, J. R. S. McCune and John Hendrick, three disinterested freeholders of said county, to view the premises, hear complaints and assess the damages. At the August term, 1903, the record of the county court recites that: “The commissioners herein, namely, John W. Hendrick, J. R. S. McCune and R. H. Tinker, appointed to view and assess the damages to property-owners over whose land said proposed road will run, made and filed with the clerk of this court a report of their proceedings, and it further appearing that said report has become lost or misplaced, it is ordered that said commissioners make out and file mstcmter a duplicate of said report to supply and take the place of said last report, and now comes two of the commissioners, J. R. S. McCune and R. H. Tinker, and file a report, which the court firid is a duplicate report of the one filed by said commissioners on the--day of June, 1903, and it is ordered by the court that said duplicate be taken and held and considered as the original report of said commissioners, from which said report it appears that said commissioners assess damages to Maggie Bailey and Lucy Bailey in the sum of $85, and that no damages were assessed to George W. Jett, Mrs. Carr, and Alton Walker, and now comes the said George W. Jett and Maggie and Lncy Bailey by their respective attorneys and leave is given them to file exceptions and objections to said report on or before the third day of the next regular term of the court, to which this cause is continued.” At the November term, said George W. Jett and Maggie and Lucy Bailey filed their motion to dismiss the cause for the reason that the road as surveyed and located passes over the lands of E. A. Morris and Susan McKinney; that they have not been made parties, the petition not giving them as owners of land over which the road is asked to be established, nor have they relinquished the right of way. And thereupon the cause was continued until February 15th, 1904, at which time said motion was by the court overruled and the road was ordered opened and the petitioners given until the first day of the May term, 1904, to pay the damages assessed. The transcript from the county court certified by the county clerk to the circuit court recites that the order overruling the motion to dismiss and directing the road to be opened was entered on the 15th of February, 1904, and that afterwards on the 2nd day of May, 1904, George W. Jett filed his affidavit in the county court for an appeal to the circuit court and an appeal was granted to the circuit court on said date. After the ease reached the circuit court the petitioners filed their motion asking the circuit court to dismiss the appeal on the ground, first, that the circuit court had no jurisdiction of said appeal; second, because the statute does not provide for nor authorize the admitted appeal of the said Jett; third, because no remonstrance was ever presented or filed in the Pike county court, and under the law, an appeal is only allowed from an order opening a road to remonstrators, who had first filed and presented a legal remonstrance at the legal time; and, fourth, because in this class of cases no right of appeal lies in appellants from the county court, which motion was by the circuit court overruled at the June term, 1904. At the June term, 1904, the cause was heard ele novo and the circuit court dismissed the petition and proceedings. Thereupon petitioners within due time filed a motion for new trial, which was overruled and petitioners appealed to this court. Other facts will be noted in the further disposition of the case..

I. Preliminary to the disposition of the cause, a motion has been filed by the respondent for. permission to correct the record of the county court filed in the circuit court, so as to show an error in the date of the judgment of the county court ordering the road opened. In this application it is stated that while the transcript from the county clerk to the circuit court showed the said order to have been made on February 15th, 1904, as a matter of fact the judgment was not entered on that date and no such entry appears of record in said court as of February 15, 1904, but the entry of said judgment does appear on the records of said county court as of March 15, 1904. Wherefore, respondent moves this court that the said transcript may be amended in so far as the date of the rendition of said judgment is concerned. In support of this application, the respondent files in this court a duly certified copy of the record of the county court of Pike county by the present clerk of the said court showing that said entry does appear on the proceedings of March 15,1904, and also a certificate from Lem T. Patterson, who was the clerk of the county court of Pike county during the years of 1903 and 1904, in which he states that the recital that said order was made on February 15, 1904, was a clerical mistake by himself, and that as a matter of fact, the order was made and entered of record on the 15th of March, 1904. He also certifies that while the transcript from the county court to the circuit court shows that the respondents took an appeal on May 2, 1904, as a matter of fact, the affidavit for the appeal and the appeal bond where each filed by him as clerk of the county court on the 24th of March, 1904, and that his file mark upon such papers shows they were filed on March 24, 1904. The petitioners object to the correcting of said record on the ground that the same should have been corrected while the cause was still in the circuit court, if said alleged defect and error in fact existed therein. The significance of this motion to amend the dates on which the final judgment was entered in the county court, and the appeal taken therefrom, appears from the brief of the petitioners filed in this court in which they ask this court to hold that the circuit court had no jurisdiction of the appeal from the county court, for the reason that the said appeal was not taken in the time prescribed by the statute. As the transcript now appears the judgment of the county court ordering the road opened was rendered on February 15, 1904, and the appeal was not taken until the 2nd day of May, 1904, seventy-two days after the rendition of the said judgment, and of course not within the time, to-wit, ten days, allowed by the statute. Respondent in his application for this amendment shows to the court that he was not informed of this mistake as to the date of the record entry until appellants’ abstract of the record was served on him just before the commencement of this term of court. That immediately upon learning of the said error in the said dates he gave the appellants notice of his intention to apply to the county court to amend its record entry nunc pro tuno and make the entries of the filing of said affidavit and bond conform to the facts as shown by the endorsement on the same by the clerk of the said court; that said application in the county court was overruled.

“While the appellants in this court, the petitioners in the county court, moved the circuit court to dismiss Jett’s appeal on the ground that the circuit court had no jurisdiction of the said appeal, they did not specify that the appeal had not been taken within ten days after the final order of the county court to open the road, but did specify other grounds.

The motion to delay this appeal until mandatory proceedings can be instituted by the respondent against the county court of Pike county to amend its record in the road case, out of which this appeal has grown, we think ought not to be sustained. This appeal is from the judgment of the circuit court upon the record that was before that court and should mandatory steps be taken and the county court records amended so as to conform to the facts as asserted by respondent, it is evident that if such amended record should be filed in this court, it would present matter which was not before the circuit court and upon which it had no opportunity to pass, and might present a wholly different case from that which appeared to the circuit court when it rendered its judgment. We are not disposed to encourage any such extraordinary practice and the motion is overruled.

II. The first proposition presented by the appellants in this court is that the circuit court had no jurisdiction of the appeal in this case, because the said appeal from the county court was not taken in the ten days allowed by the statute. Section 1788, Revised Statutes 1899, provides: “In all eases of appeal from the final determination of any case in a county court, such appeal shall be prosecuted to the appellate court in the same manner as is now provided by law for the regulation of appeals from justices of the peace to circuit courts, and when any case shall be removed into a court of appellate jurisdiction by appeal from a county court, such appellate court shall thereupon be possessed of such cause, and shall proceed to hear and determine the same anew, and in the same manner as if such cause had originated in such appellate court, without regarding any error, defect or informality in the proceedings of the county court. ’ ’ [Fisher v. Anderson, 101 Mo. 459.] The county court had original jurisdiction of this proceeding to establish the public road and the circuit court had jurisdiction of snch a proceeding only by appeal from the county court and by the provision above noted. The law governing the taking of appeals from the county court to the circuit court is the same as that provided for appeals from justices. By section 4060, Revised Statutes 1899, “no appeal shall be allowed in any case unless the following requisites be complied with: First, the appeal must be within ten days after the judgment was rendered.” It is apparent on the face of the record before us that this appeal was not taken until May 2nd, 1904, and even if the judgment was rendered on the 15th of March, as contended by the respondent, it was not taken within the ten days prescribed by the statute.

The only serious question under this state of the case is the effect of the appearance of the petitioners in the circuit court. As said by this court in Robinson v. Walker, 45 Mo. l. c. 120, “It has often been held that the appearance of a party by joining issue, or by any other action that shall indicate an intention to prosecute or defend the suit upon the merits, shall be deemed a waiver of a defect in the process or notice under which the appearance is had. But in every case of this kind the court had jurisdiction of the subject-matter, and it might with reason be said that a voluntary appearance is well enough. But the circuit court has no jurisdiction of a matter already decided on in another court, and especially in actions of forcible entry and detainer exclusively cognizable before a justice of the peace, unless it is brought into court under the statute and according to its provisions; and when it has no jurisdiction, the consent of the parties cannot give it. [Bernicker v. Miller, 37 Mo. 498, and other cases cited.]” The decision in Robinson v. Walker, supra, was cited with approval and followed in St. Louis v. Gunning Co., 138 Mo. l. c. 355, in which it was .added that the appearance of both parties in the appellate court would not give jurisdiction in such a case, as the court had no jurisdiction of the subject-matter of that case. In Robinsou v. Walker, supra, both parties appeared in the circuit court and the case had been twice continued at the instance of the plaintiff before he moved to dismiss the appeal because it had not been taken within the time prescribed by the law and the transcript filed in the office of the circuit clerk in accordance with the statute. In this case the county court had exclusive original jurisdiction of this ’proceeding to establish this road. And the circuit court could only acquire jurisdiction on the subject-matter by an appeal taken, within the time and in the manner prescribed by the statute. It is not a question of mere failure to give notice and a waiver thereof, but the jurisdiction of the circuit court depended upon the taking of the appeal within the time specified by law. We can discover no distinction on principle between the jurisdiction obtained by the circuit court in this ease on appeal from the judgment of the county court, and the jurisdiction obtained by the circuit court on an appeal from the justice of the peace in forcible entry and detainer cases. In each case the original jurisdiction is in the justice or the county court and the circuit court has no jurisdiction of the subject-matter of the suit except by appeal in the manner pointed out by the statute. This being so it seems to us there can be no question tbat npon tbe record before ns the circuit court has no jurisdiction of this case.

As the circuit court had no jurisdiction of the appeal, its judgment dismissing the petition and quashing the proceedings in the county court was without authority of law and must be and is reversed.

Fox, P. J., and Burgess, J., concur.