Midwestern Realty Co. v. City of Des Moines

• Decision Date: 23 June 1930
• Docket Number: 39205
• Citation: 231 N.W. 459,210 Iowa 942
• Parties: MIDWESTERN REALTY COMPANY, Appellant, v. CITY OF DES MOINES, Appellee
• Court: Iowa Supreme Court

231 N.W. 459

210 Iowa 942

MIDWESTERN REALTY COMPANY, Appellant, v. CITY OF DES MOINES, Appellee

No. 39205

Supreme Court of Iowa, Des Moines

June 23, 1930

REHEARING DENIED SEPTEMBER 22, 1930.

Appeal from Polk District Court.--LESTER L. THOMPSON, Judge.

The Midwestern Realty Company appeals from the judgment of the district court dismissing a purported appeal from the action of the board of review.

Affirmed.

Charles E. Hunn and Hiram S. Hunn, for appellant.

Reson S. Jones, Charles Hutchinson, F. T. Van Liew, and Chauncey A Weaver, for appellee.

MORLING C. J. STEVENS, DE GRAFF, ALBERT, KINDIG, and WAGNER, JJ., concur.

OPINION

MORLING, C. J.

Two questions are presented: (1) Whether the notice of appeal from the action of the board of review was sufficiently and properly addressed; (2) if not, whether the resulting insufficiency of the notice was cured by the appearance entered.

I. The notice, under the heading "Notice of Appeal from Assessment for 1925," reads as follows:

"To the Honorable Mayor and the City Council of Des Moines sitting as a board of review. You and each of you are hereby notified that the Midwestern Realty Company does hereby appeal from your action sitting as a board of review wherein you refuse to lower the assessment of [here follows description of the property and assessment roll] to the district court * * * [property designating the court and term]."

Section 7132, Code, 1924, provides for complaint before an action by board of review. By Section 7133, "appeals may be taken from the action of the board with reference to such complaints to the district court * * * Appeals shall be taken by a written notice to that effect to the chairman or presiding officer of the reviewing board, and served as an original notice." Section 7129 provides:

"The township trustees shall constitute the local board of review for the township or the portion thereof not included within any city or town * * *"

The statute does not undertake to determine who shall be the chairman or presiding officer of the reviewing board. It will be observed that the notice here is not addressed to any person by name. It is not in terms addressed "to the chairman or presiding officer" of the board of review. It is addressed "to the Honorable Mayor and the City Council of Des Moines, Iowa, sitting as a board of review." The statute governing these hearings before and appeals from boards of review is general, and applicable to all forms of city and town government. In Hawkeye Lbr. Co. v. Board of Review, 161 Iowa 504, 506, it is said that the mayor is presumed to have been the presiding officer of the board of review unless the contrary appears of record. We need not stop to inquire whether such presumption may be entertained under present statutes, providing for various plans of municipal government, according to which the mayor may or may not be a member of the council, and in one form of which the council "shall * * * appoint three persons which shall constitute a local board of review * * *" Code, 1924, Section 6653. See Sections 5631, 6520, 6524, 6645. It is settled in this state that notice of appeal addressed "to the presiding officer of the board of review," without naming the person, will not sustain an appeal. Descriptio personae alone in the address is not enough. Farmers' State Sav. Bank v. Town Council, 199 Iowa 1275, 202 N.W. 80, and cases there cited. A paper so addressed is not merely defective as a notice. It is no notice. Idem; In re Assignment for Benefit of Creditors of Lounsberry, 208 Iowa 596, 226 N.W. 140.

We may add that it is not required that the notice be addressed to and served upon the individual who happens to be presiding temporarily at the very time the subject-matter of the appeal was on for consideration and action. It is sufficient that the notice is addressed to and served on the individual who is the permanent presiding officer of the board. His identity may easily be determined from the record. Thereby uncertainty is avoided. Frost v. Board of Review, 113 Iowa 547.

Furthermore, actual service upon the proper person does not cure the insufficiency of the paper as a notice. In re Assignment for Benefit of Creditors of Lounsberry, 208 Iowa 596, 226 N.W. 140.

II. The appearance docket contains the following entry "Appearance for defendant, Halloran, Jones, Weaver & Hewitt." Whether this entry was made within the 20 days after the adjournment of the board within which appeal was required to be taken (Section 7133), does not appear. The city of Des Moines filed motion to dismiss, signed by these attorneys as "attorneys for defendant City of Des Moines." The question of jurisdiction was thus brought to the attention of the court. It is immaterial how and by whom the question of jurisdiction is raised. It does matter, however, who enters the appearance claimed to constitute a waiver of the absence of notice, and by whom and by what authority appearance is entered. The city council is the governing body of the city. As a city council, it has no authority over matters of general taxation. The city is but indirectly and resultantly affected by the proceedings of the board of...