Ioerger v. Schumacher
| Decision Date | 17 January 1973 |
| Docket Number | No. 55128,55128 |
| Citation | 203 N.W.2d 572 |
| Parties | Annette IOERGER and Cynthia Ioerger, by Shirley Ioerger, their Conservator, Appellee, v. Helen SCHUMACHER, Treasurer of Hardin County, Appellant, Hardin County Board of Supervisors, Intervenor-Appellant. |
| Court | Iowa Supreme Court |
Lundy, Butler, Wilson & Hall, Eldora, for appellant and intervenor-appellant.
William N. Dunn, Eldora, for appellee, in trial court only.
Heard before MOORE, C.J., and MASON, RAWLINGS, REES and HARRIS, JJ.
The treasurer of Hardin County and Hardin County board of supervisors appeal from decree enjoining collection of an assessment of $1738.48 against a tract of land owned by Annette Ioerger age 11 and her sister Cynthia age 13. The board also appeals from that portion of the decree dismissing its action for declaratory judgment and its counterclaim seeking judgment for the amount of the assessment. The assessment, for drainage district improvement costs, arises from the extension of an outlet in Hardin County drainage district No. 11 by annexing approximately eight acres of land and adding 1000 feet of tile. The project cost $10,675.66 and has been completed.
In 1963 or 1964 Valie Ioerger and his wife Shirley purchased an 80-acre tract which is a part of Hardin County drainage district No. 11. Title to the farm was placed in the name of their daughters, Annette and Cynthia. Shirley Ioerger was appointed conservator of their property. The conservatorship was of record and in full force and effect during all proceedings in this action and during proceedings in the expansion of district No. 11. Since the farm was acquired it has been rented to the father on a cash arrangement of $40 an acre.
Pursuant to chapter 455, The Code, 1971, a petition requesting an extension of drainage district No. 11 and installation of additional drain tile was circulated among persons owning property within that district in May 1967. Valie Ioerger was one of the signers on the petition although he owned no land in district No. 11.
In 1968 the drainage engineer for Hardin county, at the request of the supervisors, issued a report as to the advisability of the extension proposed by the petition. Hearing was set and notice thereof was published in the Iowa Falls Citizen. At the time Mr. and Mrs. Ioerger were subscribers to this newspaper. The published notice was addressed 'to whom it may concern,' and specifically named other property owners in the district but did not name the minors or their conservator. Notice of the hearing was also mailed to other property owners in district No. 11. No such notice was mailed to Annette or Cynthia Ioerger or their conservator.
In February 1969 the board of supervisors as trustees for this district directed the county auditor to levy an assessment against the wards' property in the amount of $1738.48. The auditor then certified the assessment to defendant, Helen Schumacher, the county treasurer, who included the assessment in the assessment and tax records.
Shirley Ioerger instituted an action in equity as conservator seeking to enjoin the Hardin county treasurer from collecting the assessment on the theory the assessment is illegal and void by reason of the failure of the Hardin county supervisors to cause notice of hearing on the petition for improvement of the drainage district to be served on her as conservator or on her wards as required by sections 455.20 and 455.21, The Code.
The treasurer filed answer seeking dismissal of plaintiff's action. She admitted the assessment and that she was attempting to collect the same. In a separate division she alleged the drainage improvements were made at the request of certain petitioners, including Valie Ioerger who acted as agent for the minors and conservator; that plaintiff had actual knowledge of the project and is now estopped from complaining of lack of notice and has waived right to notice by virtue of the petition signed by Valie Ioerger.
The board of supervisors intervened joining defendant in resisting plaintiff's petition. In a separate division it plead the same allegations as an affirmative defense. In another division the board sought a declaratory judgment as to its right to reassess the 80-acre tract pursuant to section 455.109, The Code, and in the remaining division it asked judgment for the amount of the assessment on the theory of unjust enrichment.
Valie Ioerger testified he signed the petition calling for improvements in the drainage district and that he told his wife he did so the same evening. Shirley Ioerger admitted she never objected to the proposed work after she was told her husband signed the petition. Mr. and Mrs. Ioerger neither appeared before the Hardin county board of supervisors at the hearing nor filed a claim for damages.
Both Mr. and Mrs. Ioerger denied having any personal knowledge of a proposed hearing on the petition or the work performed. The county auditor confirmed the fact no notice of the original hearing to be held October 8, 1968 on the petition was mailed to the wards or their parents although notice was published in the Iowa Falls Citizen.
The trial court stated in its findings:
Later in response to a motion to enlarge findings, rule 179, Rules of Civil Procedure, the court dismissed intervenor's division seeking declaratory judgment and in its decree dismissed intervenor's counterclaim seeking judgment for the amount of the assessment.
Defendant and intervenor rely upon three propositions for reversal. They maintain the trial court erred: (1) in holding the drainage assessment void and enjoining the Hardin county treasurer from collecting it; (2) in holding intervenor has no right to reassess the wards' land pursuant to section 455.109, The Code; and (3) in dismissing intervenor's counterclaim for $1738.48 plead on the theory of unjust enrichment.
Appellee has filed no brief and argument.
Our review in this equitable proceeding is de novo. Rule 334, R.C.P.
I. Appellants concede no notice of the hearing on the petition to improve Hardin county drainage district No. 11 was given the minors or their conservator. Nevertheless, appellants argue that Valie Ioerger acted as his wife's agent when he signed the petition with reference to farm owned by the minors thereby waiving the owners' right to personal notice of the hearing. In other words, appellants insist the filing of the petition requesting the improvements which Mr. Ioerger signed constituted an appearance on behalf of the minor owners and their conservator. They rely on this statement from Oliver v. Monona County, 117 Iowa 43, 51, 90 N.W. 510, 513:
'Moreover, Oliver, who is the only party to these proceedings who in his own name makes complaint of the sufficiency thereof, was one of the signers to the original petition, and also to the bond required by the section of the statute last referred to, and we think he is in no position to complain because a more formal notice was not given.'
In addition, they contend Ioergers must have had actual knowledge of the hearing because of the manifest concern in the community.
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