City of Marion v. Ganby

• Decision Date: 18 December 1885
• Citation: 68 Iowa 142,26 N.W. 40
• Parties: CITY OF MARION v. GANBY AND ANOTHER.
• Court: Iowa Supreme Court

68 Iowa 142

26 N.W. 40

CITY OF MARION

v.GANBY AND ANOTHER.

Supreme Court of Iowa.

Filed December 18, 1885.

Appeal from Linn circuit court.

This is a proceeding under the statute to condemn certain land for the purposes of a street. The cause was referred to arbitrators, and upon their report a judgment condemning the land was entered. Defendant Susan Breneman alone appeals.Gus. W. Wilson, for appellant, Susan Breneman.

David Smyth, for appellee, City of Marion.

BECK, C. J.

1. The plaintiff, being desirous of extending one of its streets, filed its petition in the circuit court, under authority conferred by Code, § 476, asking the condemnation of certain land therein described. The defendants were served with notice, and appeared, and entered into a written agreement, by their attorneys, with the plaintiff, to the effect that the case should be tried by “arbitrators,” to be selected by agreement, who should be “the judges both of law and fact connected with the case.” Other agreements as to the place of trial, the persons selected to try the case, etc., were entered into. They need not be more particularly referred to. The persons selected by the parties tried the case, and made report to the circuit court, upon which a judgment of condemnation was made. The damages awarded being paid by plaintiff into court, an order issued directing the sheriff to deliver possession of the land to plaintiff. Various objections are made by appellant to the proceedings, which we will consider in the order of their discussion by her counsel.

2. An objection is based upon the ground that this is a special proceeding, and that, as only actions are subjects of arbitration under Code, § 3416, the case was unlawfully sent to the arbitrators. It is not necessary to determine the meaning of the word “action” as used in the section cited. Code, § 3419, provides that a “suit” may be submitted to arbitrators, by order of the court, upon the agreement of parties. The term “suit” is more comprehensive in its signification than the word “action;” extending to any proceeding, in a court of justice, seeking a remedy which the law affords, and to any legal application to a court for justice. See Bouv. Law Dict.; Webst. Dict. This proceeding is a suit, and, under the section of the Code just cited, may be submitted to arbitration.

3. Counsel insist that, as Code, § 3417, requires a written agreement to be signed and acknowledged by the parties to authorize an arbitration, which was not done, the arbitration was not authorized. But this provision is applicable to controversies in which no action has been commenced. Code, § 3414, is applicable to controversies in which suits have been commenced, and does not require a written instrument to be signed and acknowledged by the parties. It was therefore not necessary.

4. Counsel maintain that appellant did not appear by counsel in the case, and that attorneys representing her were not by her employed. The affidavits filed upon a motion to vacate the judgment establish the...