Elwood v. Bd. of Sup'rs of Sac Cnty.

• Decision Date: 10 June 1912
• Citation: 136 N.W. 709,156 Iowa 407
• Parties: ELWOOD v. BOARD OF SUP'RS OF SAC COUNTY ET AL. WATT v. BOARD OF SUP'RS OF SAC COUNTY ET AL.
• Court: Iowa Supreme Court

156 Iowa 407

136 N.W. 709

ELWOOD

v.BOARD OF SUP'RS OF SAC COUNTY ET AL.

WATT

v.BOARD OF SUP'RS OF SAC COUNTY ET AL.

Supreme Court of Iowa.

June 10, 1912.

Appeal from District Court, Sac County; Z. A. Church, Judge.

Appeals from orders dismissing appeals taken by the plaintiffs from awards of damages due to the establishment of a drainage district to the district court of Sac county. Reversed and remanded.Elwood & Stanfield and L. H. & B. I. Salinger, for appellants.

R. L. McCord and John W. Jacobs, for appellees.

DEEMER, J.

The board of supervisors of Sac and Calhoun counties established certain drainage districts within the said counties, and in due season the plaintiffs in these cases filed with the proper boards claims for damages on account of the establishment and location of said districts. These claims were heard by the boards and allowances made thereon; the record being made on April 27, 1910. Thereafter and on May 16th, each of the claimants appealed to the district court by giving notices and filing the requisite bonds. The next term of the district court of Sac county commenced on October 24, 1910. Within due season the auditor of Sac county filed a transcript of the record, including notices of appeal and bonds, with the clerk of the district court. Plaintiffs neglected to file petitions in the district court on the day the term opened, and on the next day, to wit, October 25th, defendants filed motions to dismiss the appeals because petitions were not filed within the time allowed by law and “by reason thereof the plaintiff has waived said appeal.” On the day the motions were filed and before the same were ruled upon, plaintiffs in each case filed proper petitions in the district court, and at the time of filing the court granted each plaintiff time in which to file affidavits of merits. These were filed on October 31, 1910, and on the same day amended and substituted petitions were filed. Still later and on November 3, 1910, plaintiff filed resistances to defendant's motions to dismiss the appeals. In support of these objections to the motions to dismiss and of their claim to have the case retained upon the docket for trial, each of the plaintiffs showed that failure to file their petitions in time was due to mistake and oversight on the part of the attorney in charge of the matter; that he prepared the petitions and supposed he had filed them with other papers; that he did not learn to the contrary until informed by his partner of the motions to dismiss; that this was on the morning of the second day of the term, and that he immediately prepared and filed the petitions before the convening of the court on the afternoon of the second day; and that he never intended to waive or abandon the appeals.

Upon this record the trial court sustained the motions to dismiss, and plaintiffs in each case have appealed. The records in the cases are identical and, while the cases were not consolidated, they will be disposed of in one opinion.

[1] It is conceded that plaintiffs did everything required of them to get their cases into the district court and to have them there heard save to file petitions therein within the time required by statute. The statutes with reference to these appeals, so far as material, read as follows:

“Any person or persons aggrieved shall have the right to appeal in the same time and in the same manner as provided when the district is wholly in one county. * * * If said appeal is from the award of damages * * * the appeal shall be taken to the district court of the county in which the land affected is located. Notice of appeal and bond shall be given to and filed with the county auditor in the county where the appeal is taken.” Code Supp. § 1989--a35, as amended by Acts 33d Gen. Assem. c. 118.

“Any party aggrieved may appeal from the finding of the board * * * in the allowance of damages to the district court by filing notice with the county auditor at any time within twenty days after such finding, at the same time filing a bond with the county auditor, approved by him, and conditioned to pay all costs and expenses of the appeal unless the finding of the district court shall be more favorable to the appellant * * * than the finding of the board. If the appeal is from the amount of damages allowed, the amount ascertained in the district court shall be entered of record, but no judgment shall be rendered therefor. The amount thus ascertained shall be certified by the clerk of said court to the board of supervisors, who shall thereafter proceed as if such amount had been by it allowed the claimant as damages.” Code Supp. § 1989--a6, as amended by Acts 33d Gen. Assem. c. 118.

“When an appeal authorized by this chapter is taken, the county auditor shall forthwith make a transcript of the notice of appeal and appeal bond and transmit the same to the clerk of the district court, and the clerk shall docket the same upon payment by the appellant of the docket fee; and on or before the first day of the next succeeding term of the district court the appellant shall file a petition setting forth the order or decision appealed from and his claims and objections relating thereto; a failure to comply with these requirements shall be deemed a waiver of the appeal and in such case the court shall dismiss the same.” Code Supp. § 1989--a14, as amended by Acts 33d Gen. Assem. c. 118.

From a reading of these it will be noticed that the appeal is perfected by the filing of notice and the giving of the bond. All the other requirements have reference to procedure after the appeal is taken. These are (1) the auditor must make and file a transcript; (2) upon payment by appellant of a docket fee the clerk must docket the case; and (3) the appellant on or before the first day of the next succeeding term must file a petition, etc., and the statute then says that “a failure to comply with these requirements shall be deemed a waiver of the appeal, and in such case the court shall dismiss the same.” Plaintiffs each performed each and all of these requirements save that their petitions were not filed until noon of the second day of the term. The delay in filing is excused, however, as...