Bales v. Iowa State Highway Commission

• Decision Date: 12 November 1957
• Docket Number: No. 49326,49326
• Citation: 86 N.W.2d 244,249 Iowa 57
• Parties: Rex BALES and Helen Bales, Appellees, v. IOWA STATE HIGHWAY COMMISSION and The State of Iowa et al., Appellants.
• Court: Iowa Supreme Court

Page 244

86 N.W.2d 244

249 Iowa 57

Rex BALES and Helen Bales, Appellees, v. IOWA STATE HIGHWAY COMMISSION and The State of Iowa et al., Appellants.

No. 49326.

Supreme Court of Iowa.

Nov. 12, 1957.

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 to the district court from the assessment. The commission's original application above referred to names Rex 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 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 thirty days after the assessment is made, appeal therefrom to the district court, by giving the adverse party, his agent or attorney, and the sheriff, written notice that such appeal has been taken.'

It is true, as the commission says, there is no inherent or constitutional right of appeal. It is purely a creature of statute. The legislature has the power to grant or deny it. If an appeal is to be taken notice thereof must be given in substantial compliance with the statute. Krcmar v. Independent School District, 192 Iowa 734, 185 N.W. 485; Wissenburg v. Bradley, 209 Iowa 813, 821, 229 N.W. 205, 67 A.L.R. 1075, 1081, and citations. See also Thorson v. City of Des Moines, 194 Iowa 565, 188 N.W. 917; State ex rel. McPherson v. Rakey, 236 Iowa 876, 878, 20 N.W.2d 43, 44, and citations.

The trial court's ruling upon the commission's first motion to dismiss, before plaintiffs' petition was amended and original notice served upon additional parties, appears to be based upon our decision in Chicago, R. I. & P. R. Co. v. Hurst, 30 Iowa 73, cited by both sides. There one of two owners of condemned property appealed to the district court from a joint assessment of damages without joining the other owner or serving him with notice of appeal. The condemner moved to dismiss the appeal upon grounds similar to those urged by the commission here. Upon appeal to this court the principal question considered was the overruling of the motion to dismiss. We reversed and remanded the case to the district court with directions to sustain the motion to dismiss the appeal unless the nonappealing owner, by notice or otherwise, was made a party to the record.

The statute that governed the Hurst case, supra, section 1317 Revision of 1860, gave either party the right to appeal from the assessment of damages to the district court within 30 days thereafter, but apparently did not prescribe upon whom notice of appeal must be served.

Cedar Rapids, I. F. & N. W. Ry. Co. v. Chicago, M. & St. P. Ry. Co., 60 Iowa 35, 37, 14 N.W. 76, 77, says of the Hurst decision, supra, 'it was held that where damages * * * are assessed jointly to two persons as owners of the land, an appeal cannot be taken and prosecuted by one of them without uniting the other therein, or making him a party thereto by notice or otherwise.'

Code, § 472.18, I.C.A., quoted above, authorizes 'any party interested' to appeal 'by giving the adverse party' notice thereof. It is not contended plaintiff Bales is not an interested party. Clearly he is. The effect of the commission's argument is that Mrs. Drake and Mrs. Schallenberger are adverse parties upon whom notice of appeal must have been served within 30 days after the assessment was made.

We find it unnecessary to determine whether Mrs. Drake and Mrs. Schallenberger would be adverse parties in the sense here used if plaintiffs were not to be treated as sole owners in fee simple of the land in question, entitled to all the damages from the condemnation, as their amended petition alleges. (Plaintiffs' original petition also alleges they are the record title owners of the realty.) Decisions dealing with like questions are discussed in Annotation, 88 A.L.R. 419, entitled 'Who is adverse party within statute providing for service of notice of appeal on adverse party.' Ann.Cas.1914D, 1139 contains a note on appeals in eminent...