Ashton v. Story

• Decision Date: 24 October 1895
• Parties: ASHTON ET AL. v. STORY.
• Court: Iowa Supreme Court

96 Iowa 197

64 N.W. 804

ASHTON ET AL.

v.STORY.

Supreme Court of Iowa.

Oct. 24, 1895.

Appeal from district court, Guthrie county; J. H. Applegate, Judge.

The plaintiffs are publishers of the Guthrian, a weekly newspaper published in Guthrie county. In January, 1893, they applied to the board of supervisors of that county to have their newspaper selected as one of the official newspapers of the county under the provision of section 307 of the Code. The board denied the application, and selected the Guthrie Times, a weekly newspaper published in the county by the defendant. From the decision the plaintiffs appealed to the district court. That tribunal found in favor of the plaintiffs, and adjudged the Guthrian to be one of the official papers of the county for the year named. From that judgment the defendant appeals. Affirmed.E. W. Weeks, for appellant.

E. R. Sayles, for appellees.

ROBINSON, J.

The list of subscribers within the county filed by the plaintiffs contained 986 names, of which 91 were stricken out by the court, leaving 895 which were counted as those of bona fide yearly subscribers to the Guthrian. The list filed by the defendant contained 1,012 names, of which 119 were stricken out, leaving 893 to be counted for the Times, or 2 less than the number counted for the other paper.

1. In the district court the defendant filed a motion to require the plaintiffs to state more particularly the manner in which they were aggrieved by the action of the board of supervisors, which was overruled, and of that ruling the defendant complains. It is said that, if the ruling was erroneous, the defendant waived the error by proceeding to trial. There was nothing in what he did inconsistent with his right to insist upon his exception to the ruling. He did not file any subsequent pleading, and therefore does not come within the rule of Mann v. Taylor, 78 Iowa, 357, 43 N. W. 220, and other cases cited by the appellees. But we do not find that the ruling was erroneous. A contest of this kind is triable in the first instance by the board of supervisors of the county in which it is instituted, and formal pleadings are not in all cases required. Runion v. Haislet (Iowa) 57 N. W. 902. The issue should be presented to the board for determination, and, when fraud is charged, it should be alleged before the hearing is had and the selection of papers is made. Cory v. Hamilton, 84 Iowa, 597, 51 N. W. 54. The jurisdiction of the district court is appellate; and it should try and decide the case made before the board of supervisors. Without deciding that pleadings may not be required by the district court in any case, we reach the conclusion that there was no error in not requiring them in this one.

2. The chief contention on this appeal is based upon the action of the district court in striking from the Times list 36 names which were furnished to the defendant under an agreement made with one W. H. Stiles, but which the court found were not names of bona fide yearly subscribers. The facts in regard to them are substantially as follows: In December, 1892, the defendant and Stiles entered into an agreement in writing, a copy of which is as follows: “This article of agreement, made and entered into by and between H. W. Stoy, of the first part, and W. H. Stiles, of the second part, all of Guthrie county, Iowa, witnesseth: That, for and in consideration of the sum of twenty-five dollars and other valuable consideration, the party of the first part hereby agrees to furnish party of the second part fifty copies of the Guthrie Times for one year, from and including Vol. 10, No. 20, to be sent to such persons in Guthrie county, Iowa, as party of the second part shall direct; also to furnish party of the second part one column of advertising in said paper for same time as above stated, party of the second part to have the privilege of changing the said column at such time and in such manner as he may direct. Said advertisement shall occupy the 1st column or the upper half of the 1st two columns of the 1st page of the said Guthrie Times. Dated this 27th day of December, 1892. H. W....