Knight v. Acton

• Decision Date: 15 December 1906
• Citation: 109 N.W. 1089
• Parties: KNIGHT v. ACTON ET AL.
• Court: Iowa Supreme Court

109 N.W. 1089

KNIGHT

v.ACTON ET AL.

Supreme Court of Iowa.

Dec. 15, 1906.

Appeal from District Court, Wapello County; F. W. Eichelberger, Judge.

The opinion states the case. Affirmed.

Jaques & Jaques, for appellant.

A. C. Steck, for appellee Z. T. Knight.

W. W. Epps and Seneca Cornell, for appellee J. R. Moore and Wapello county.

PER CURIAM.

This action was brought by the plaintiff under the provisions of Code, § 4228, to settle the proper location and boundary lines of a highway separating lands owned by the plaintiff from those owned by the defendant Acton. As required by said statute, Wapello county was made a party defendant, as was also J. R. Moore, road supervisor of the district in which the highway in question is located. The several defendants appeared to the action, the county filing a separate answer denying the petition, and pleading the alleged true location of the road and acquiescence therein by all parties for many years. The defendant Acton also contested the claims of plaintiff, and, being dissatisfied by the decree entered by the trial court, has attempted to appeal therefrom, but has served no notice of such appeal upon Wapello county. Based upon this failure objection is raised to the jurisdiction of this court to entertain the appeal. We think the objection must be held to be well taken. It is true that the county is not the owner of any property right affected by the decree, but it is charged with jurisdiction in the matter of establishing, changing, and vacating highways and the statute makes it a necessary party to the proper settlement of disputed boundary lines which affect the location of any public road. If the proper protection of public interests requires that the county be made a party in the court below, it would seem equally imperative that it should be brought into the appellate proceedings. It is too well settled in this court to require argument that failure to serve a necessary notice of appeal is a fatal objection to our jurisdiction, and that the defect is not waived by the appearance of counsel.

The plaintiff has also appealed from the order of the trial court refusing to tax any part of the costs against Wapello county or the road supervisor, and taxing same one-half to the plaintiff and one-half to the defendant Acton. We see no good reason for disturbing this order. The taxation and apportionment of costs in proceedings of this nature is expressly left to the trial court to settle as to it...