Barrett v. Kemp

• Decision Date: 22 May 1894
• Citation: 59 N.W. 76,91 Iowa 296
• Parties: JOHN BARRETT et al. v. SUMNER KEMP et al., Appellants
• Court: Iowa Supreme Court

59 N.W. 76

91 Iowa 296

JOHN BARRETT et al. v. SUMNER KEMP et al., Appellants

Supreme Court of Iowa, Des Moines

May 22, 1894

Appeal from Hardin District Court.--HON. J. L. STEVENS, Judge.

PROCEEDING to condemn land for cemetery purposes. Trial to jury. Verdict and judgment for plaintiffs. Defendants appeal.

Affirmed.

C. E Albrook for appellants.

M. J Furry for appellees.

OPINION

KINNE, J.

I.

September 25, 1891, plaintiffs, as trustees of Alden township, in Hardin county, Iowa filed their petition, reciting that the defendants were the owners of certain lands (describing them), that it was necessary to immediately procure additional ground for cemetery purposes in said township, and praying the condemnation of five acres of ground therefor. October 13, 1891, defendants filed their answer, admitting the ownership of the property, that plaintiffs were the trustees of the township, and denying that any necessity existed for procuring additional grounds for cemetery purposes; denying plaintiff's right to have same condemned, because it was not necessary. October 14, 1891, plaintiffs amended their petition by striking out the allegation that it was necessary to immediately procure additional cemetery grounds, and substituting therefor the statement "that plaintiffs herein, at a special meeting held on the nineteenth day of September, A. D. 1891, determined that it was necessary to immediately procure additional cemetery grounds, and ordered the institution of an action to condemn the lands hereinafter set out in the petition." October 16, defendants answered said amendment, denying plaintiffs' right to take the property, because it was not necessary so to do; denying plaintiffs' right to determine the question, in such a manner as to be binding upon defendants, without notice; and averring that such action, without notice, would be void. And further they say: "With reference to the allegations stating what was done on the twenty-sixth day of September, 1891, these defendants say they have neither knowledge nor information sufficient to form a belief." On the same day, plaintiffs filed their demurrer to defendant's answer, and the amendment thereto, consisting of three grounds, being, in substance, that: First, the only question that could be determined in the action is the value of the land sought to be condemned and defendant's damage; second, that plaintiffs were the exclusive judges of the necessity for condemnation; and, third, that no notice of plaintiffs' purpose to institute condemnation proceedings was required. This demurrer was sustained, to which ruling defendants excepted. Upon the question of damages, the cause was tried to a jury, and verdict of three hundred and sixty dollars found for defendants, upon which judgment was entered. Defendants appeal.

II. It is said the court erred in sustaining the demurrer. The assignment of error is not sufficiently specific to raise this question. The assignment is general, and fails to point out or designate the particular ground...