Board of Directors of Larrabee Consol. School Dist. v. Cherokee County Bd. of Ed., 52446

• Decision Date: 07 March 1967
• Docket Number: No. 52446,52446
• Citation: 149 N.W.2d 304,260 Iowa 210
• Parties: BOARD OF DIRECTORS OF the LARRABEE CONSOLIDATED SCHOOL DISTRICT and William Gregg, Garland Honsbruch, Clarence Steimke, Lester Prunty and Ed Bjorge, as members of said Board, Appellants, v. CHEROKEE COUNTY BOARD OF EDUCATION and Merle Cave, Walter Peterson, Lyle Paulson, Wendell Grauer, Howard Sadler, as members of said Board, and Steven O'Donnell, Secretary of the Board, Appellees.
• Court: Iowa Supreme Court

Page 304

149 N.W.2d 304

260 Iowa 210

BOARD OF DIRECTORS OF the LARRABEE CONSOLIDATED SCHOOL DISTRICT and William Gregg, Garland Honsbruch, Clarence Steimke, Lester Prunty and Ed Bjorge, as members of said Board, Appellants, v. CHEROKEE COUNTY BOARD OF EDUCATION and Merle Cave, Walter Peterson, Lyle Paulson, Wendell Grauer, Howard Sadler, as members of said Board, and Steven O'Donnell, Secretary of the Board, Appellees.

No. 52446.

Supreme Court of Iowa.

March 7, 1967.

Richard Rhinehart, Sioux City, for appellants.

James L. McDonald, Cherokee, for appellees.

BECKER, Justice.

Plaintiffs as Directors of the Board of Education of the Larrabee Consolidated School District seek to appeal the action of the Cherokee County Board of Education attaching the Larrabee Consolidated School District to the Cherokee Independent School District. The County Board of Education filed a special appearance challenging the court's jurisdiction. The special appearance was sustained and plaintiffs' appeal dismissed.

On April 29, 1966, the Secretary of the State Board of Public Instruction approved defendant county school board's action. Section 275.1, Code, 1966 provides in part: '* * * Any such district or part thereof attached by the county board of education, with the approval of the state board of public instruction, shall have the right to appeal this attachment to a court of record in the county in which said district or part thereof is located within twenty days after the date of the approval by the state board of public instruction.'

On May 19, 1966, plaintiffs filed Petition on Appeal with the clerk of the district court for Cherokee County. The petition alleged that defendants' action was in violation of Section 275.1, was capricious and arbitrary, not in the best interest of all parties concerned and without regard to the welfare of the adjoining districts. It asked that the attachment be held null and void.

Notice of Appeal was filed with Petition on Appeal and copies of the notice were placed in the hands of the sheriff. Intent that the notices are to be immediately served is presumed unless the contrary appears. Iowa Rules of Civil Procedure, #49. Notice was actually served on all board members on May 21 and on the secretary on May 26.

The notice was entitled Notice of Appeal and provided as follows: 'You and each of you are hereby notified that the plaintiffs hereinabove named hereby appeal to the District Court of Iowa in and for Cherokee County from the action taken by the Cherokee County Board of Education and subsequently approved by the State Board of Public Instruction as completed by the Secretary of the said State Board on April 29, 1966, attaching the territory of the Larrabee Consolidated School District to the Cherokee Independent School District on the grounds set out in the attached petition. You are further notified that you should file your answer to the petition, now on file with the Clerk of the District Court in and for Cherokee County, or such other pleadings as may be proper or as required by Iowa Rules of Civil Procedure 368 of the laws of the State of Iowa as may be applicable thereto.'

Defendants' special appearance is bottomed on the contention 'that the attachment must be appeal(ed) to the Court within twenty (20) days after the approval by the State Board of Public Instruction, that this proceeding is an original action and must be commenced according to the Iowa Rules of Civil Procedure, that the Notice of this proceeding was not served on the Chairman of the defendant Board within twenty (20) days following the approval of the attachment by the State Board of Public Instruction, * * *.'

Plaintiffs contend that the notice was placed in the hands of the sheriff for immediate service, served the purpose of an original notice and delivery of the notice constituted a commencement of the action for the purpose of determining whether the action had been started within the statute of limitations.

Defendants challenge this position because they contend the notice fails to provide an appearance date.

I. A somewhat similar problem was faced by this court in Mazzoli v. City of Des Moines, 245 Iowa 571, 63 N.W.2d 218. In that condemnation case the statute provided: "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." In that case, as here, the notice was delivered to the sheriff within the time allowed by law but was not served on the city until after the 30 day period had run. A majority of the court held that the jurisdiction of the district court was appellate, notice had to be served upon the sheriff and the adverse party within 30 days, and delivery of notice to the sheriff did not toll the statute of limitations under Rule 49, Iowa Rules of Civil Procedure. Four members of this court felt that the jurisdiction of the courts in case of an appeal from an administrative body was original, that the notice contained all of the requirements of an original notice and that Rule 49, which would constitute a commencement of the action for the purpose of the statute of limitations, should apply.

Since Mazzoli was decided, we have adopted the reasoning of the dissent as to the nature of the action before the district court where one of the parties seeks judicial review of an administrative decision. In re Community School District of Farragut, 250 Iowa 1324, 98 N.W.2d 888; Board of Education in and for Essex Indep. School Dist., etc. v. Bd. of Education, etc., 251 Iowa 1085, 104 N.W.2d 590; Danner v. Hass, 257 Iowa 654, 134 N.W.2d 534.

Both parties recognize that our latest cases now clearly hold that 'appeals from administrative proceedings generally invoke the original rather than the appellate jurisdiction of the courts in the absence of a contrary intent shown by the statutes.' Danner v. Hass, supra.

Section 275, Code 1966 provides only for appeal and the time within which it shall be taken. Therefore the statement in the Farragut case, supra, is controlling. 'We must for the purposes of jurisdiction, and of procedure and pleading, except where the statute specifically outlines these matters, view this 'appeal' as merely an original proceeding in the district court to determine the rights of the parties and the legality of the actions of the administrative body. No specific procedures are outlined except for the time of taking the appeal.'

II. Board of Education in and for Essex Indep. School Dist., etc. v. Board of Education, supra, used the following quotation: "* * * we think the ordinary appeal from a decision of an administrative tribunal to the courts is not to be regarded as a real judicial appeal. It is, in effect, nothing more than a means of getting the matter before the trial court as an original proceeding and for an original judgment. * * *"

While appeals of this nature are thus akin to commencement of ordinary actions, the fact that they are continuations of prior governmental action or hearing cannot be wholly ignored. Otherwise Rule 368...