Bales v. Iowa State Highway Commission, No. 49326
| Court | United States State Supreme Court of Iowa |
| Writing for the Court | Norman A. Erbe, Atty. Gen.; GARFIELD |
| Citation | 86 N.W.2d 244,249 Iowa 57 |
| Docket Number | No. 49326 |
| Decision Date | 12 November 1957 |
| Parties | Rex BALES and Helen Bales, Appellees, v. IOWA STATE HIGHWAY COMMISSION and The State of Iowa et al., Appellants. |
Page 244
v.
IOWA STATE HIGHWAY COMMISSION and The State of Iowa et al., Appellants.
Page 245
Norman A. Erbe, Atty. Gen., C. J. Lyman, Special Asst. Atty. Gen., and Daniel T. Flores, General Counsel for the commission, Ames, and Oliver J. Reeve, Waverly, for appellants.
R. W. Zastrow, Charles City, and Blake & Holley, Shell Rock, for appellees.
GARFIELD, Justice.
For convenience we disregard the fact the State of Iowa is named as a defendant. The Iowa State Highway Commission (herein called the commission) instituted a proceeding to condemn certain land in Bremer county for use in improving two primary highways. It filed its application with the sheriff and notice thereof was given the record titleholders. Commissioners appointed by the chief justice of this court assessed the damages to the property from which parts were taken at $4,301.50 for which a joint award was made to the titleholders.
Within 30 days after the assessment of damages plaintiffs, Rex Bales and his wife, and no one else, gave the (highway) commission and sheriff written notice they had taken an appeal [249 Iowa 59] to the district court from the assessment. The commission's original application above referred to names Rex
Page 246
Bales as the holder of a life estate in the property affected and also names: Act Eick, as executor of the estate of Eva U. Hupp, Juaneta Bales Drake, Hanna Marks Schallenberger and Open Bible Church of Indianola, Iowa. The application names the last three as owners, apparently of remainder interests. The respective spouses of Rex Bales, Mrs. Drake and Mrs. Schallenberger are also named.After plaintiffs Bales and wife filed their petition on appeal in the district court the commission moved to dismiss it on the ground that, although it alleges they are the record titleholders of the land, Bales is in fact the holder of a life estate only, the remainder interests are owned by Mrs. Drake, Mrs. Schallenberger and Open Bible Church as the commission's original application states, they are all indispensable parties to the appeal and it could not be taken by Bales and wife alone, at least without giving the other owners notice of the appeal.
Attached to and made part of the commission's motion to dismiss is a copy of the probated will and codicil of Eva U. Hupp who presumably owned the land in her lifetime. The will gives Rex Bales a life estate in the property with remainder to Mrs. Drake and Mrs. Schallenberger. If either of these women predeceases testatrix the will leaves her share to Open Bible Church. It is conceded both Mrs. Drake and Mrs. Schallenberger survived Mrs. Hupp and the church has no interest in the property. Nothing is therefore claimed for the failure of the church to join in the appeal to the district court or for plaintiffs' failure to serve it with notice thereof. The will nominates Art Eick executor.
The trial court ordered that the commission's motion be sustained unless within 20 days all parties to whom damages were awarded by the commissioners (sheriff's jury) are served with notice and made parties of record.
Within the 20-day period plaintiffs amended their petition by alleging that Eick, executor of Eva U. Hupp. deceased, Mrs. Drake and husband, Mrs. Schallenberger and husband and Open Bible Church had an apparent interest in the proceeds of the property sought to be condemned but in fact they have no right, title or interest in the land or the proceeds awarded or to be [249 Iowa 60] awarded, and plaintiffs Bales and wife are sole owners in fee simple of all the property sought to be condemned and are entitled to all the proceeds awarded or to be awarded in the condemnation.
Also within the 20-day period original notice of the filing of the petition as amended was served upon Eick, executor, Mrs. Drake, Mrs. Schallenberger and their respective husbands.
To the petition as amended the commission filed its motion to dismiss upon the grounds stated in its first motion to dismiss, above referred to, and upon the further ground in substance that the owners of the remainder interests must have joined in the appeal or been served with notice thereof within 30 days from the assessment of damages.
The trial court overruled the commission's motion to dismiss the petition as amended and, pursuant to rule 332, 58 I.C.A. Rules of Civil Procedure, we granted an appeal from the ruling in advance of final judgment.
The statute prescribing the right of appeal to the district court from the commissioners' assessment of damages, section 472.18, Code 1954, I.C.A., states: 'Any party interested may, within...
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State v. Horn, No. 62231
...be prejudiced or adversely affected by a reversal or modification of judgment appealed from); and Bales v. Iowa State Highway Commission, 249 Iowa 57, 63, 86 N.W.2d 244, 248 There is no merit in this assignment. V. Is the "dead man's statute" applicable to this criminal proceeding......
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Carmichael v. Iowa State Highway Commission, No. 52730
...may be granted or withheld by the legislature. Hubbard v. Marsh, 239 Iowa 472, 473, 32 N.W.2d 67; Bales v. Iowa State Highway Commission, 249 Iowa 57, 60, 86 N.W.2d 244, 246; and Griffel v. Northern Natural Gas Co., 257 Iowa 1140, 1145, 136 N.W.2d 265, Appeals from condemnation awards are g......
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Hawkeye-Security Ins. Co. v. Ford Motor Co., HAWKEYE-SECURITY
...of those records. We do not take judicial notice of records in another case tried in the same court. Bales v. Iowa State Highway Comm., 249 Iowa 57, 86 N.W.2d 244. The case cited by defendant, Dobler v. Bawden, 238 Iowa 76, 85, 25 N.W.2d 866, is not in point. There we referred to a prior pr......
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Atherton v. Hoenig's Grocery, No. 49291
...of contributory negligence. Defendant * * * was not subject to liability for injuries resulting from dangers that were obvious * * *'. [249 Iowa 57] The case involved a dangerous condition in an entrance to a store, as does the one presently before us. The only factual difference is that in......
-
State v. Horn, No. 62231
...be prejudiced or adversely affected by a reversal or modification of judgment appealed from); and Bales v. Iowa State Highway Commission, 249 Iowa 57, 63, 86 N.W.2d 244, 248 There is no merit in this assignment. V. Is the "dead man's statute" applicable to this criminal proceeding......
-
Carmichael v. Iowa State Highway Commission, No. 52730
...may be granted or withheld by the legislature. Hubbard v. Marsh, 239 Iowa 472, 473, 32 N.W.2d 67; Bales v. Iowa State Highway Commission, 249 Iowa 57, 60, 86 N.W.2d 244, 246; and Griffel v. Northern Natural Gas Co., 257 Iowa 1140, 1145, 136 N.W.2d 265, Appeals from condemnation awards are g......
-
Hawkeye-Security Ins. Co. v. Ford Motor Co., HAWKEYE-SECURITY
...of those records. We do not take judicial notice of records in another case tried in the same court. Bales v. Iowa State Highway Comm., 249 Iowa 57, 86 N.W.2d 244. The case cited by defendant, Dobler v. Bawden, 238 Iowa 76, 85, 25 N.W.2d 866, is not in point. There we referred to a prior pr......
-
Atherton v. Hoenig's Grocery, No. 49291
...of contributory negligence. Defendant * * * was not subject to liability for injuries resulting from dangers that were obvious * * *'. [249 Iowa 57] The case involved a dangerous condition in an entrance to a store, as does the one presently before us. The only factual difference is that in......