Self v. Gowin

ELLISON, J. The plaintiff began proceedings in the county court of Dallas county to change a public road on another line on his own land under the provisions of section 7918, Revised Statutes 1889.- The county court-granted the change and defendants, as remonstrants, appealed to the circuit court where plaintiff was again successful. Defendants appeal to this court. Roads and highways: change of road on petitioner’s own land: proof of notice, Among several other points was one of there being no proof in the case of notice having been given of the petitioner’s application for the change. The statute authoriziug the proceedings requires that notice _ , , , „ _ _ shall be given as 121 case oi new roads. In case _ , , of new roads twenty days notice must be given by posting up three written or printed hand [400] bills, in three public places in the township, one at the proposed beginning and one at the proposed ending of the proposed road. Section 7797, Revised Statutes 1889. There must be proof of this notice in court. Sec. 7798. In the case before us the only proof of notice consisted in an affidavit taken before a notary public made by J. W. McCullough and attached to the paper. This was not proof of notice. The return of service by one not authorized to make a return is not evidence. It has no official character and is nowhere provided for by the statute. .The affidavit was ex jpa/rte and unauthorized. The county court was, therefore, without jurisdiction and the petitioner’s application should have been dismissed. _._. remonstrants. It is suggested that the parties styled “remonstrants” had no standing in court and that their objections should not bo noticed. We are inclined to the opinion that in a proceeding of this kind for the change of a road on one’s own land as provided by section 7818, there is no standing for a remonstrance in the sense provided for in section 7798 which concerns the opening of new roads or the ordinary change of old roads. Rut this does not prevent any one whose interests may be affected from making a contest in the matter. The object in requiring notice is certainly to invite objection, in court, if there is any. We therefore hold the objections to this proceeding were properly permitted to Ije made by the parties interested therein. It is not necessary to notice other points discussed by counsel since the judgment must be reversed and petition dismissed. All concur.