Hulett v. Snook, 5563.
| Decision Date | 12 November 1928 |
| Docket Number | No. 5563.,5563. |
| Citation | 57 N.D. 338,221 N.W. 879 |
| Parties | HULETT v. SNOOK et al. |
| Court | North Dakota Supreme Court |
Where a board of township supervisors enter an order laying out a public highway and awarding damages to the owner of the land taken for highway purposes, and where subsequently the person to whom damages are awarded and the supervisors of the township appear in the district court to which an appeal properly lies from the order of the township supervisors (section 1935, C. L. 1913), and a trial is had in such court of all the issues in controversy without objection and with the express assent and participation of all parties, a party who has participated in such trial cannot, after the trial has been completed and the verdict returned, be heard to say that no valid appeal had been taken from the determination of the township supervisors and that, consequently, the district court was without jurisdiction to hear and determine the controversy.
Appeal from District Court, Grant County; Berry, Judge.
Action by Irving Hulett against G. W. Snook and others, Board of Supervisors of Pretty Rock Township, and another, to review an order of the Township Supervisors awarding damages for land taken for highway. From an adverse judgment, defendants appeal. Affirmed.Jacobsen & Murray, of Mott, for appellants.
Sullivan, Hanley & Sullivan, of Mandan, for respondent.
This controversy involves the laying out of a certain highway in Pretty Rock township in Grant county. The material facts are as follows: On April 20, 1927, the board of supervisors of Pretty Rock township entered an order laying out a highway across certain lands belonging to the plaintiff, Hulett. Hulett, being dissatisfied with the order of the township supervisors, proceeded to take an appeal to the district court of Grant county. On May 18, 1927, he served notice of appeal and undertaking on appeal; but such notice and undertaking were not filed with the clerk of the district court until June 24, 1927. On June 9, 1927, the board of supervisors of Pretty Rock township entered a second order relating to the same matter. It appears that the first order was defective, in that it did not properly describe the land sought to be taken for road purposes. The second order cured this defect. No appeal was taken from the second order. The appeal from the first order was placed upon the calendar at the regular June, 1927, term of the district court of Grant county and was reached for trial on June 29, 1927. At that time the plaintiff appeared in person and by his counsel and all the defendants appeared in person and by their counsel. After the case was called for trial the following stipulation was made:
“It is stipulated and agreed between the parties on both sides that the above case be tried with the eleven jurors in the box with the same force and effect as if tried with twelve jurors.
It is further stipulated and agreed that the appeal herein shall relate to and be taken from the amended order in the matter of the road mentioned in the notice of appeal made by the Township Board of Pretty Rock Township, Grant County, North Dakota, and dated the 9th day of June, 1927; and that this appeal shall also be deemed taken from the original order mentioned in the notice of appeal and all proceedings had in connection with the laying out of this road; and that all other matters relating to the time of filing of bond and notice of appeal with the clerk of the district court are hereby waived, and it is further stipulated that the case be tried upon its merits:
1st: The necessity for laying out the road at the placed designed in the notice and orders; and,
2nd: As to the amount of damages or compensation to be awarded, and that this shall also include the termini of the road and the necessity of laying it out and taking the amount of land involved in this amended order.”
Thereupon the case was tried to a jury. The jury returned a verdict on June 30, 1927. The verdict found that the proposed road was necessary and that the plaintiff was entitled to recover damages in the sum of $250. On August 16, 1927, pursuant to notice, the defendants moved that the verdict be vacated and the appeal dismissed and costs taxed against the plaintiff on the following grounds: (1) That the district court had no jurisdiction of the subject-matter involved in said purported appeal, trial, and verdict; (2) that the plaintiff failed to perfect an appeal from the original order dated April 20, 1927, in that the notice of appeal and undertaking were not filed with the clerk of the district court within the time provided by law; (3) that the court had no jurisdiction of the subject-matter involved in the order entered June 9, 1927, for the reason that no appeal was ever taken from such order.
The trial court entered an order denying the motion. Subsequently judgment was entered pursuant to the verdict, and the defendants have appealed. The sole question presented on this appeal is whether the trial court erred in denying the motion to vacate the verdict and dismiss the appeal to, and the proceedings had in, the district court.
In our opinion the trial court was entirely correct in denying the motion to vacate the judgment and dismiss the proceeding. The district court is a court of general jurisdiction. It has unquestioned jurisdiction upon the appeal of a party aggrieved, to review the decision of a board of township supervisors in laying out a highway. Sections 1935-1938, C. L. 1913. This is not a case, as appellants assume, where the district court in the first instance attempted to lay out the highway or determine any questions incident thereto; but it is a case where proceedings for the laying out of a highway had been had before, and a determination made by, the board having original jurisdiction of such applications and where the aggrieved party had the right to have such determination reviewed by the district court. In short, it is a case where there existed a controversy which the district court of Grant county had...
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...See, also, Farmers' Irrigation Dist. v. Calkins, 104 Neb. 196, 176 N.W. 367; Webber v. City of Scottsbluff, supra; Hulett v. Snook, 57 N.D. 338, 221 N.W. 879; Simons v. Mason City & Fort Dodge R. R. Co., 128 Iowa 139, 103 N.W. Also, as stated in 31 C.J.S., Estoppel, § 118, p. 380: 'A party ......
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