Kenkel v. Iowa State Highway Commission

• Citation: 162 N.W.2d 762
• Decision Date: 12 November 1968
• Docket Number: No. 53124,53124
• Parties: Raymond N. KENKEL and Evelyn Kenkel, Appellants, v. IOWA STATE HIGHWAY COMMISSION, Appellee, and V. A. Carmichael and Marcia A. Carmichael, Intervenors-Appellants.
• Court: United States State Supreme Court of Iowa

Page 762

162 N.W.2d 762

Raymond N. KENKEL and Evelyn Kenkel, Appellants, v. IOWA STATE HIGHWAY COMMISSION, Appellee and V. A. Carmichael and Marcia A. Carmichael, Intervenors-Appellants.

No. 53124.

Supreme Court of Iowa.

Nov. 12, 1968.

D. C. Nolan and Tom Martin, Iowa City, for appellants and intervenors-appellants.

Richard C. Turner, Atty. Gen., and Robert T. Lego, Asst. Atty. Gen., Counsel for Iowa State Highway Commission, for appellee.

MASON, Justice.

This is an appeal from the trial court's judgment sustaining the highway commission's special appearance to plaintiffs' petition on appeal to the Pottawattamie district court from a condemnation commission's award of damages.

Condemnation proceedings were instituted by the highway commission under chapter 472, Code, 1966, for the taking of certain land belonging to Raymond N. and Evelyn Kenkel for highway purposes. October 5, 1967, the condemnation commission filed its award of damages with the Pottawattamie County sheriff. November 3 Kenkels filed with the sheriff notice of appeal to be served upon the highway commission by serving the attorney general. The notice of such appeal was not served on him until November 24.

December 7 the highway commission filed its special appearance challenging the court's jurisdiction to entertain the appeal on the ground the notice of appeal was not served within 30 days after the condemnation commission assessed damages.

February 14, 1968, V.A. and Marcia A. Carmichael filed their petition of intervention pursuant to rule 75, Rules of Civil Procedure, stating they had an interest in the subject matter of the litigation and the success of plaintiffs to the action.

In ruling on the special appearance and plaintiffs' resistance the trial court found plaintiffs had failed to serve notice of appeal on the highway commission within 30 days after award as required by section 472.18, Code, 1966, dismissed the cause and assessed costs against plaintiffs.

I. Plaintiffs and intervenors appeal, assigning two errors relied on for reversal. They contend trial court erred in sustaining defendant's special appearance; that this ruling denied them constitutional rights to equal protection of the laws and protection against the taking of their property without due process of law and just compensation.

They maintain in support of their first contention an appeal to the district court from a condemnation commission's award under chapter 472 is an original proceeding and not an appellate review; therefore, placing the notice of appeal in the hands of the sheriff within the 30-day period from the assessment with the intention it be served forthwith confers jurisdiction upon the trial court though actual service on appellee is not made within the statutory period.

Section 472.18 provides:

'Any party interested may, within thirty days after the assessment is made, appeal therefrom to the district court, by giving the adverse party, his agent or attorney, and the sheriff, written notice that such appeal has been taken.'

The principal question presented by the special appearance and this appeal is whether the appeal was taken within this 30-day period.

On facts almost identical with those here appellants' contention was rejected in Mazzoli v. City of Des Moines, 245 Iowa 571, 573--574, 63 N.W.2d 218, 219--220. There the commissioners made the appraisement of damages July 16, 1953. August 14 appellees delivered to the sheriff's office a notice of appeal addressed to the 'Sheriff of Des Moines, Iowa, and Tom Reilley, Sheriff of Polk County'. The return of service stated the same was served on the sheriff August 14 and on Des Moines August 18. All parties conceded the city was not actually given notice within the 30 days. Mazzoli, however, asserted the 'thirty days provision' is a limitation on the remedy; the giving of notice is the commencement of the action; and that under rule 49, R.C.P., the same was commenced in time. Finding the contention without merit, we said:

'While generally speaking the jurisdiction of the district court is general and original, Section 604.1; it is in certain matters appellate, Section 604.2. Section 472.1 states: 'The procedure for the condemnation of private property, * * *, unless and except as otherwise provided by law, shall be in accordance with the provisions of this chapter.' Section 472.3 provides: 'Such proceedings shall be instituted by a written application filed with the sheriff * * *.' It is clear that exclusive jurisdiction is placed in the sheriff and commissioners and that only by the process of appeal does the district court obtain jurisdiction over both the subject matter and the parties. Its jurisdiction is appellate only.

'* * *

'* * * Rule 49 states: 'For the purpose of determining whether an action has been commenced within the time allowed by statutes for limitation of actions, whether the limitation inheres in the statute creating the remedy or not, the delivery of the original notice to the sheriff of the county * * * shall also be deemed a commencement of the action.' * * *

'* * *

"A notice of appeal is in no sense an original notice. The statute does not in such case contemplate the commencement of an original action in the district court. The statute requires nothing more than that a written notice shall be served * * *.

While the purpose of the respective notices is to bring the cause on for trial in the district court, the proceedings are essentially different.' (Quoting from O'Neal v. State, 214 Iowa 977, 980, 243 N.W. 601, 603)

'There can be no other logical conclusion than rule 49 is not applicable to the type of action here contemplated.'

Since Mazzoli, decided in 1954, our decisions have continued to approve these statements and on February 6, 1968, in Carmichael v. Iowa State Highway Commission, Iowa, 156 N.W.2d 332, 335, we once again expressed approval, saying:

'We have consistently held jurisdiction of the district court in condemnation cases is appellate only and the notice required by section 472.18 is a notice of appeal. Mazzoli v. City of Des Moines (1954), 245 Iowa 571, 573, 63 N.W.2d 218, 219; Bisenius v. Palo Alto County (1964), 256 Iowa 196, 198, 127 N.W.2d 128, 130; Scoular-Bishop Grain Co. v. Iowa State Highway Commission (1966), 258 Iowa 1003, 1006, 140 N.W.2d 115, 117; Harrington v. City of Keokuk (1966), 258 Iowa 1043, 1046, 141 N.W.2d 633, 636; and Merritt v. Interstate Power Co. (Iowa 1967), 153 N.W.2d 489, 492. Only by the process of appeal does the district court obtain jurisdiction over both the subject matter and the parties.

'Moreover, to invoke the appellate jurisdiction of the district court the statute must be followed and notice of appeal must be given in substantial compliance with its terms. Bales v. Iowa State Highway Commission, * * *, 249 Iowa (57) at 60, 86 N.W.2d (244) at 246--247; Harrington v. City of Keokuk, supra, 258 Iowa at 1047, 141 N.W.2d at 636. Failure to serve an adverse party within the time provided by section 472.18 is fatal to the court's jurisdiction. Griffel v. Northern Natural Gas Co., * * *, 257 Iowa (1140) at 1145 136 N.W.2d (265) at 268, and citations; Scoular-Bishop Grain Co. v. Iowa State Highway Commission, supra; Harrington v. City of Keokuk, supra, 258 Iowa at 1047, 141 N.W.2d at 636.'

However, appellants urge that we reconsider and overrule our holdings in the cited cases, adopt the language of the dissent in Mazzoli and hold that an appeal from a condemnation commission's award under chapter 472 is an original proceeding. In Carmichael v. Iowa State Highway Commission, supra, plaintiffs there who are intervenors here argued we had overruled the cited cases and adopted the reasoning of the dissent in Mazzoli by our decision in Board of Directors v. Cherokee County Bd. of Ed., 260 Iowa 210, 149 N.W.2d 304. What was said in Carmichael in rejecting this contention need not be repeated here. See 156 N.W.2d commencing at 335. It is sufficient to say now we have not overruled our holding in Mazzoli v. City of Des Moines, supra.

As we understand appellants' argument at this point they contend that since this is an original proceeding service of the notice of appeal in accordance with the provisions of rule 49, R.C.P., conferred no jurisdiction upon the trial court. It is obvious the argument is based upon the premise that an appeal to the district court from a condemnation commission's award is an original proceeding.

Contrary to plaintiffs' position, we have consistently interpreted chapter 472 as expressing a legislative intent that appeals from condemnation awards invoke the appellate, not original, jurisdiction of the district court. Rule 49, R.C.P., is not applicable in determining whether notice of appeal has been served within the statutory period provided for in condemnation appeals.

Appellate jurisdiction in condemnation proceedings cannot be conferred on the district court by consent. See Carmichael v. Iowa State Highway Commission, supra.

As a result of appellants' failure to serve notice of appeal in substantial compliance with the statute the court did not have jurisdiction of the parties. The effect of a contrary holding would be to extend the time within which an appeal may be taken. This we cannot do. Bisenius v. Palo Alto County, supra, 256 Iowa at 200, 127 N.W.2d at 131.

The trial court was correct in sustaining the commission's special appearance.

II. As stated, appellants contend under their other assignment of error they were denied constitutional rights of equal protection and just compensation for their property. They argue that to hold these plaintiffs to a strict compliance with all provisions of chapter 472 in order to confer jurisdiction on the trial court and to require only partial compliance by the condemnees in Crawford v. Iowa State Highway Comm., 247 Iowa 736, 76 N.W.2d 187, and Bales v. Iowa State Highway Commission, supra, amounts to applying the same law...