Lynch v. Dugan (In re Dugan)

• Decision Date: 09 January 1906
• Citation: 129 Iowa 241,105 N.W. 514
• Parties: IN RE DUGAN ET AL. LYNCH v. DUGAN ET AL.
• Court: Iowa Supreme Court

129 Iowa 241

105 N.W. 514

IN RE DUGAN ET AL.LYNCH

v.DUGAN ET AL.

Supreme Court of Iowa.

Jan. 9, 1906.

Appeal from District Court, Cedar County; J. H. Preston, Judge.

Proceedings to establish a highway. The appellant appealed from an award of damages, and her appeal was dismissed by the district court. She appeals. Reversed.W. H. Smith and Chas. W. Kepler, for appellant.

Wright, Leech & Wright, for appellees.

SHERWIN, J.

W. A. Dugan and others petitioned for the establishment of a highway, and the appellant filed a claim for damages and asked that commissioners be appointed to assess the same. Commissioners were thereupon appointed, who assessed the amount of her damages, and the road was afterward established on condition that the petitioners therefor pay the damages and costs. In due time the appellant served a notice of appeal on the county auditor, in which she stated that she appealed from the order establishing the road, and another notice on the four persons first named in the petition for the road, in which she stated that she appealed “in the matter of the application,” etc., and continued, “and, unless you appear thereto and defend, * * * default will be entered against you and judgment rendered thereon in accordance with the prayer of the plaintiff's application.” Dugan moved to dismiss the appeal because it purported to be an appeal from the order establishing the highway, and the motion was sustained.

If the appellees' contention that the notice served on the petitioners was an appeal from the order establishing the highway and not an appeal from the award of damages, the ruling of the district court is right beyond question, for an appeal does not lie from such an order. Pollard v. Dickinson County, 71 Iowa, 438, 32 N. W. 418. Notwithstanding the carelessness apparent in the notice, we think it may fairly be construed to be an appeal from the award of damages, rather than from the order establishing the road, and that it was sufficient notice to that effect. In the first place, an appeal can only be taken from the award of damages; and, in the second place, a notice to the petitioners is not necessary unless the road has been established or altered on condition that they pay the damages arising therefrom; and, if the notice as a whole fairly indicated that the appeal was from the award, it is sufficiently specific. Searles v. Lux, 86 Iowa, 61, 52 N. W. 327;Kennedy v. Rosier, 71 Iowa, 671, 33 N. W. 226;Geyer v. Douglass...