Ellis v. Carpenter

• Decision Date: 18 October 1893
• Citation: 56 N.W. 678,89 Iowa 521
• Parties: ELLIS v. CARPENTER ET AL.
• Court: Iowa Supreme Court

89 Iowa 521

56 N.W. 678

ELLIS

v.CARPENTER ET AL.

Supreme Court of Iowa.

Oct. 18, 1893.

Appeal from district court, Mahaska county; J. K. Johnson, Judge.

This is a proceeding to establish a public highway. The petition praying the establishment of the highway was signed by some 43 persons, and was filed with the auditor of the county. The proposed highway ran along the line of the plaintiff's farm, and occupied some 40 feet in width thereof. He filed a claim for damages. Commissioners were appointed, and his damages were assessed at $160. The matter was heard by the board of supervisors, and the road was ordered established upon condition that the petitioners pay the damages. The plaintiff attempted to appeal from the award of damages, and the petitioners from the road also appealed. The plaintiff's appeal was dismissed, and afterwards the appeal of the petitioners was, on their motion, dismissed. The plaintiff appeals to this court.Bolton & McCoy, for appellant.

Haskell & Greer and John F. & W. R. Lacey, for appellees.

ROTHROCK, J.

1. The appeal of the plaintiff was dismissed for the reason that no proper notice of the appeal was served, and that, because of the failure to make proper service, the district court had no jurisdiction of the case. The notice and service thereof in such cases is prescribed by section 959 of the Code, which is as follows: “Any applicant for damages claimed to be caused by the establishment of any highway, may appeal from the final decision of the board of supervisors to the circuit (district) court of the county in which the land lies; but notice of such appeal must be served on the county auditor within twenty days after the decision is made. If the highway has been established on condition that the petitioner therefor pay the damages, such notice shall be served on the four persons first named in the petition for the highway, if there are that many who reside in the county.” The four persons first named in the petition were Edward Carpenter, J. A. Baitsell, C. D. Randall, and Daniel Monk. The service of the notice of appeal, as shown by the return of the sheriff, was as follows: “I hereby certify and return that this notice same into my hands September 22, 1891, and on September 24, 1891, I served the same personally on J. A. Baitsell, Ed. Carpenter, and Daniel Monk, by reading the same to them, and delivering to them a true copy thereof. Said defendant C. D. Randall not being found, I served the same by leaving a copy hereof with Sarah Randall, a member of his family over 14 years of age, at his last and usual place of residence, in Mahaska county, Iowa, September 24, 1891.” It will be observed that the service on C. D. Randall was not made upon him personally, but by leaving a copy with his wife. The court below was of the opinion that said service was not sufficient. The statute does not authorize service in that manner. When service is required, it means personal service. There is no authority for...