McIntire v. Gettings , 54 Ky. 172 ( 1854 )

Judge Crenshaw

delivered the opinion of the Court—

The proceedings in this case were had since the adoption of the Revised Statutes, and must be governed by their provisions. And the 9th section of chapter LX, page 449, upon the subject of processioning of lands, provides that: “ The reports of processioners, the plats and certificates of the surveyor, notices and affidavits, and depositions taken by the processioners, shall, when returned to the County Court, be recorded in a book kept for that purpose, and filed away and carefully kept by the clerk, and shall be prima facie evidence against and between the parties interested, and others claiming through or under them.”

, This provision, in our opinion, contemplates no adjudication upon the report or exceptions thereto, for it expressly directs that the proceedings shall be recorded in a book kept for that purpose. This direction is incompatible with a judicial power to.decide upon, and either reject or confirm, the report. The direction is imperative, that the report, &c. shall be recorded, &c. •

Each party interested has an equal opportunity to take his proof before the processioners, which is to be repoi’ted and filed away, and all the evidence upon the subject of boundary which either thinks proper to produce is to be preserved among the files of the court. No advantage is given to one party over another, but all who are interested are placed upon the same footing.

The provision, as we have construed it, better comports with good policy than if the law had conferred upon the County Courts the power to investigate and decide upon the the merits of the report.

As the County Court did not, nor can, adjudicate upon the subject, no appeal lies to this court upon its refusal to decide upon the exceptions to the report.

Wherefore, the appeal is dismissed.