Carmichael v. Iowa State Highway Commission

• Decision Date: 06 February 1968
• Docket Number: No. 52730,52730
• Citation: 156 N.W.2d 332
• Parties: V. A. CARMICHAEL and Marcia A. Carmichael, Appellees, v. IOWA STATE HIGHWAY COMMISSION, Appellant.
• Court: Iowa Supreme Court

Page 332

156 N.W.2d 332

V. A. CARMICHAEL and Marcia A. Carmichael, Appellees, v. IOWA STATE HIGHWAY COMMISSION, Appellant.

No. 52730.

Supreme Court of Iowa.

Feb. 6, 1968.

Richard C. Turner, Atty. Gen., and Robert N. Merillat, Sp. Asst. Atty. Gen., and Counsel to Iowa State Highway Commission, Ames, for appellant.

D. C. Nolan, Iowa City, and Glenn Bradley, Sigourney, for appellees.

MASON, Justice.

Defendant Iowa State Highway Commission instituted condemnation proceedings affecting land in Keokuk County owned by plaintiffs V.A. and Marcia A. Carmichael. Notice of condemnation was filed with the sheriff. The Carmichaels and the Prudential Insurance Company of America accepted service of this notice and Keokuk County was served. A condemnation jury made an award September 26, 1963, and the sum awarded was later deposited with the sheriff.

Notice of plaintiffs' appeal to the district court was accepted by defendant October 23. No other notice of appeal was served and November 12 plaintiffs filed in the Keokuk District Court their petition on appeal. Section 472.22, Codes, 1962, 1966.

On November 27 defendant filed application in the court to take possession of the land condemned and asked that the amount deposited with the sheriff be disbursed to plaintiffs and other recipients of the award as their interests may appear. The application was granted by court order. Section 472.25, Code, 1962.

December 9 defendant filed answer but did not allege facts challenging the trial court's jurisdiction.

June 6, 1966, the cause having been assigned for trial, defendant filed a motion to dismiss plaintiffs' appeal on the ground the district court was without jurisdiction to determine it because of the absence of a necessary party. The motion alleged that on the condemnation date there was on record a mortgage from plaintiffs to Prudential Insurance Company of America, filed August 1, 1959; that at the time the motion was filed the mortgage remained unpaid of record; the mortgagee was an adverse party on whom plaintiffs' notice of appeal to the district court must be served; and no such notice had been served on or accepted by the mortgagee.

Plaintiffs dictated in the record resistance to the motion as not timely, having been filed after defendant had by its appearance and answer conferred jurisdiction upon the court; and defendant was estopped from questioning the court's jurisdiction to hear the appeal.

In addition to the resistance, plaintiffs filed an undated paper designated 'Disclaimer of Interest' executed by a resident attorney for Prudential, asserting it was a mortgagee of the property described in plaintiffs' petition on appeal, but disclaimed any interest in or title to that portion of the premises condemned.

The trial court concluded defendant, having made a direct attack on the court's lack of jurisdiction, had the burden of proving this issue and failed to sustain it; the mortgagee, having filed a disclaimer of interest, is not in fact one who will be prejudiced or adversely affected by reversal or modification of the award appealed from and, therefore, is not an adverse party upon whom plaintiffs' notice of appeal must be served.

The district court jury ascertained plaintiffs' damages, the court entered the same of record and awarded plaintiffs judgment for costs, including fees for their attorney. Section 472.23, Codes, 1962, 1966.

I. Defendant appeals from this final judgment and entry of the amount of damages ascertained. It contends the court erred in denying its motion to dismiss plaintiffs' appeal in holding (1) the test in determining whether a mortgagee is an adverse party in a condemnation appeal is a question of fact and defendant had the duty of proving same; (2) appellate jurisdiction can be perfected by plaintiffs' filing of mortgagee's disclaimer of interest without the time limitation of Code section 472.18; and (3) in appearing, answering and filing application for disbursement to plaintiffs of the commissioners' award defendant waived or was estopped from challenging plaintiffs' perfection of appellate jurisdiction.

II. The right of appeal is not inherent or constitutional and 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, 268.

Appeals from condemnation awards are granted by Code section 472.18 which provides: '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.' This section prescribes the time limit and the procedure by which the appeal may be taken.

We have consistently held jurisdiction of the district court in condemnation cases is appellate only and the notice required by section 472.18 is a notice of appeal. Mazzoli v. City of Des Moines (1954), 245 Iowa 571, 573, 63 N.W.2d 218, 219; Bisenius v. Palo Alto County (1964), 256 Iowa 196, 198, 127 N.W.2d 128, 130; Scoular-Bishop Grain Co. v. Iowa State Highway Commission (1966), 258 Iowa 1003, 1006, 140 N.W.2d 115, 117; Harrington v. City of Keokuk (1966), 258 Iowa 1043, 1046, 141 N.W.2d 633, 636; Merritt v. Interstate Power Co. (Iowa 1967), 153 N.W.2d 489, 492. Only by the process of appeal does the district court obtain jurisdiction over both the subject matter and the parties.

Moreover, to invoke the appellate jurisdiction of the district court the statute must be followed and notice of appeal must be given in substantial compliance with its terms. Bales v. Iowa State Highway Commission, supra, 249 Iowa at 60, 86 N.W.2d at 246--247; Harrington v. City of Keokuk, supra, 258 Iowa at 1047, 141 N.W.2d at 636. Failure to serve an adverse party within the time provided by section 472.18 is fatal to the court's jurisdiction. Griffel v. Northern Natural Gas Co., supra, 257 Iowa at 1145, 136 N.W.2d at 268, and citations; Scoular-Bishop Grain Co. v. Iowa State Highway Commission, supra; Harrington v. City of Keokuk, supra, 258 Iowa at 1047, 141 N.W.2d at 636.

It is settled in Iowa that a mortgagee is an adverse party upon whom notice of appeal must be served when a condemnation award is appealed to the district court. Scoular-Bishop Grain Co. v. Iowa State Highway Commission, supra, 258 Iowa at 1005, 140 N.W.2d at 117, and citations.

III. Plaintiffs argue we have overruled the cases cited and adopted the reasoning of the dissent in Mazzoli, supra, that an appeal from an administrative proceeding to the district court invokes original rather than appellate jurisdiction of the court.

From this plaintiffs assert filing of 'disclaimer of interest' by Prudential included a waiver of notice of plaintiffs' appeal to the district court and conferred jurisdiction to adjudicate that company's rights; jurisdiction may be conferred in any manner provided in rule 65, Rules of Civil Procedure; nothing could be accomplished by serving notice of appeal on Prudential as it had voluntarily appeared by filing the disclaimer and waiver of notice, was bound by such appearance and could not later object to the court's jurisdiction.

Plaintiffs rely on this language in Board of Directors v. Cherokee County Board of Education, 260 Iowa 210, 149 N.W.2d 304, 306:

'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 (Citing cases).

'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, (257 Iowa 654, 666, 134 N.W.2d 534, 542)' (Emphasis supplied.)

In addition to Danner v. Hass the opinion cites In re Community School District of Farragut, 250 Iowa 1324, 98 N.W.2d 888 and Board of Education in and for Essex Independent School Dist., etc. v. Board of Education, etc., 251 Iowa 1085, 104 N.W.2d 590. Both involve school reorganization under chapter 275 of the Code. Section 275.16 provides in part: '* * * The court on appeal shall have the same authority as is granted in this section to the state department of public instruction. * * *' Otherwise the chapter provides only for appeal and the time within which it shall be taken.

This statement from the Farragut case, supra, 250 Iowa at 1329, 98 N.W.2d at 891, is quoted in the Cherokee County opinion:

'* * * 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 * * *' (Emphasis supplied.)

In Danner revocation of a driver's license and automobile registration were under consideration. After hearing before an authorized agent of the commissioner of public safety plaintiff appealed to the district court. Section 321.215 which governs appeals from license suspensions under section 321.210 provides in part:

'Any person * * * whose license has been canceled, suspended, or revoked by the department * * * shall have the right to file a petition within thirty days thereafter for a hearing * * * in a court of record * * * and such court is hereby vested with jurisdiction and it shall be its duty to set the matter for hearing upon thirty days written notice to the commissioner, and thereupon The court shall hear and determine the matter as an original proceeding upon a transcript of all the proceedings before the commissioner, and upon additional evidence and other pleadings as the court may require. The decision of the...