City Council of Marion v. National Loan & Investment Co.

• Decision Date: 06 February 1904
• Parties: CITY COUNCIL OF CITY OF MARION, Appellant, v. NATIONAL LOAN & INVESTMENT COMPANY et al., Appellees
• Court: Iowa Supreme Court

98 N.W. 488

122 Iowa 629

CITY COUNCIL OF CITY OF MARION, Appellant, v. NATIONAL LOAN & INVESTMENT COMPANY et al., Appellees

Supreme Court of Iowa, Des Moines

February 6, 1904

Appeal from Linn District Court.--HON. H. M. REMLEY, Judge.

THIS is an appeal from the action of the city council of the city of Marion, sitting as a board of review, in raising the taxation assessment of certain real estate situated in said city, and of which the parties named as defendants claim to be the owners. The clerk of the district court erroneously docketed the appeal; the city council being designated as plaintiff and the property owners as defendants. The cause was tried in the court below under such title without objection, and the record filed in this court is similarly entitled. The court below entered a decree reducing the assessment as made by the city council to the sum originally fixed by the assessor, and the plaintiff appeals.

Reversed.

Voris & Haas for appellant.

Jamison & Smyth for appellees.

OPINION

BISHOP, J.

The notice of appeal from the board of review was filed in the office of the clerk of the district court on June 3, 1901 that being the first day of the June term of the district court in and for Linn county. Based on such filing alone, the appeal was docketed by the clerk. No further filings were made or proceeding had at the term of court then begun, nor were any steps taken at the regular August term following. At the term of court beginning in November, the matter of the appeal being called for hearing, defendants asked leave to file a transcript of the proceedings of the board of review and a petition. To this plaintiff objected, and filed a motion to dismiss the appeal for the reasons (1) that the appeal had not been taken as provided by law; (2) that the appeal had not been perfected by the filing of a transcript of the proceedings of the board of review; (3) that it was not made to appear that the appeal was based upon any complaint made before the board of review. This motion was overruled, and we think properly so. The appeal was taken by serving a notice upon the mayor of the city within the time required by law, which notice contained a description of the property affected, and the assessment made thereon by the assessor, and referred in sufficient terms to the action of the council in raising such assessment. Such notice also specified the court in which, and the time when, the appeal would be called for hearing. Section 1373 of the Code provides that in such cases "appeals shall be taken by a written notice to that effect to the chairman or presiding officer of the reviewing board, and served as an original notice. The court shall hear the appeal in equity, and determine anew all questions arising before the board," etc. The proper service of the required notice is the essential thing, from a jurisdictional viewpoint, and this we expressly decided in City Council, etc v. Cedar Rapids & M. C. Ry., 120 Iowa 259, 94 N.W. 501. See, also, Farmers' L. & T. Co. v. Newton, 97 Iowa 502, 66 N.W. 784; Bremer Co. Bank v. Bremer County, 42 Iowa 394. But while jurisdiction is conferred by the service and filing of a proper notice of appeal, it is nevertheless proper that a transcript be filed; and the court should require the filing thereof, not only that the proceedings upon which the appeal is based may be clearly and fairly brought to the attention of the court, but that the court record may furnish a proper basis upon which to rest a decree. City Council v. Cedar Rapids & M. C. Ry., supra; Frost v. Board, 114 Iowa 103, 86 N.W. 213. It is true that the notice of appeal in this case did not recite the fact that the appealing property owners had appeared before the board and made complaint of the raise in their assessment. The fact that such complaint had been made was quite material, as we shall see presently, but it was not essential that the notice should contain a recital thereof. If the fact was established on the hearing, this would be sufficient.

Leave was granted to the defendants to file a transcript, and thereafter they filed what purported to be a full transcript of the proceedings of the board of review. They also obtained leave therefor, and filed an unverified petition. Without further pleading on the part of either party, the cause proceeded to a hearing. The defendants produced several witnesses who testified to the value of the property in question. They also introduced the assessor's book, showing the sum at which the property had been assessed, and the tax list and assessment rolls of the county, as far as the same had relation to such property; also a notice, signed by the city clerk, addressed to one of the defendants, having relation to the raise in the assessment, and fixing the time for hearing complaints. The plaintiff offered no evidence whatever, and, based upon the record as thus made, the court entered its decree reducing the tax valuation of the property in question to the sum originally fixed by the assessor. It is the contention of appellant in this court that such degree was not warranted, for that, in the first place, the proof was insufficient to show that the board did in fact raise the assessment valuation of defendants' property; and, in the second place, there was no proof made that defendants, or any person for them, had appeared before the board and made complaint in respect of the alleged raise of assessment.

While the evidence is unsatisfactory, still we think it may fairly be gathered therefrom that the raise in valuation of the property of defendants, as alleged, was made, and therefore...