Iowa Elec. Light & Power Co. v. Inc. Town of Grand Junction

• Citation: 251 N.W. 609,217 Iowa 291
• Decision Date: 12 December 1933
• Docket Number: No. 42142.,42142.
• Parties: IOWA ELECTRIC LIGHT & POWER CO. v. INCORPORATED TOWN OF GRAND JUNCTION et al.
• Court: United States State Supreme Court of Iowa

217 Iowa 291

251 N.W. 609

IOWA ELECTRIC LIGHT & POWER CO.

v.INCORPORATED TOWN OF GRAND JUNCTION et al.

No. 42142.

Supreme Court of Iowa.

Dec. 12, 1933.

Appeal from District Court, Greene County; P. J. Klinker, Judge.

This is a cross-appeal by the appellees predicated upon an unsatisfactory decree rendered in favor of the appellee and which granted the main relief prayed for in the cross-petition of appellee, through reserving from the adjudication one alleged issue. The appellant challenges the jurisdiction of the court to entertain the appeal of appellee and moves to dismiss on the ground that the purported order appealed from was not appealable under the statute. It also defends the reservation as a proper one.

Affirmed.

See, also, 250 N. W. 136.

Donnelly, Lynch, Anderson & Lynch, of Cedar Rapids, Salinger, Reynolds & Meyers, of Carroll, and Graham & Graham, of Jefferson, for appellant.

O. C. Metzger, of Grand Junction, George A. Rice, of Mapleton, and Clark, Byers, Hutchinson & Garber, of Des Moines, for appellees.

EVANS, Justice.

The plaintiff brought its suit in equity to enjoin the defendants named above from certain procedure intended to install a public light and power plant in the town of Grand Junction. One of the grounds of attack was that the plaintiff itself had operated for many years, and was still operating, a distribution system of electric power and light for said town. The defendant answered the petition with certain averments to the effect that the franchise of the plaintiff had long since expired, and that it was maintaining its distribution system within the streets and alleys of the town of Grand Junction without authority of law, and that it was a mere trespasser. The said defendant also filed a cross-petition containing the same averments and praying for an ouster of the plaintiff and that it be required to remove from the town of Grand Junction its poles and wires constituting its distribution system within said town. The decree of the trial court dismissed the petition of the plaintiff and entered decree for the town of Grand Junction, sustaining its prayer for ouster of the poles and wires of the plaintiff constituting such distribution system within said town. It later developed that, in the preparation of the formal decree to be entered by the court, the cross-petitioner sought to include within the order of ouster a certain independent transmission line which had no connection with the distribution system of the plaintiff within the town of Grand Junction, but which carried power and light to the towns of Dana and Paton. This transmission line passed through the town of Grand Junction and over its streets and alleys. No reference had been made to it in the pleadings. The only reference thereto in the evidence was purely incidental. The court thereupon reserved the question from the adjudication without prejudice to a future determination of the dispute, if any, between the parties. This reservation in the decree is the purported order from which the town of Grand Junction purports to appeal. The appeal in the main case by the plaintiff has been heretofore submitted to us, and is now pending before us. The reservation in the decree from which the cross-petitioner appeals is as follows: “It is further ordered, adjudged and decreed that upon objection of the Iowa...