Miller v. Palo Alto Bd. of Sup'rs, 49150

• Citation: 248 Iowa 1132,84 N.W.2d 38
• Decision Date: 26 June 1957
• Docket Number: No. 49150,49150
• Parties: H. E. MILLER, Appellant, v. PALO ALTO BOARD OF SUPERVISORS and R. O. Miller, Sheriff of Palo Alto County, Appellees.
• Court: United States State Supreme Court of Iowa

Page 38

84 N.W.2d 38

248 Iowa 1132

H. E. MILLER, Appellant, v. PALO ALTO BOARD OF SUPERVISORS and R. O. Miller, Sheriff of Palo Alto County, Appellees.

No. 49150.

Supreme Court of Iowa.

June 26, 1957.

Hutchison, Hutchison & Carroll, Algona, for appellant.

Joseph P. Hand, Emmetsburg, for appellees.

OLIVER, Justice.

Respondent Board of Supervisors, as trustee for Drainage District 61 in Palo Alto County, Iowa, caused to be instituted a proceeding for the condemnation of a strip of land for drainage purposes. Respondent county sheriff appointed a commission which assessed damages for such taking. Thereafter the board constructed a surface drain upon said strip. Upon petition of H. E. Miller, owner of part of said land, the district court caused a writ of certiorari to issue to the Board and the county sheriff to review the condemnation proceeding. Trial resulted in an adjudication the proceeding was valid and an order annulling the writ. From such judgment and order petitioner prosecutes this appeal.

I. Appellant pleaded the assessment of damages to his real estate was invalid because the commissioners who made it had failed to qualify by filing the oath required by the statute. Error is predicated upon the finding and conclusion of the trial court that the purported oath which was filed was valid.

The authorities recognize various kinds of oaths, among which are the oath taken by a witness, the oath of an affiant to attest the truth of a writing, and the qualifying oath, juramentum promissionis, such as the one here in question, which is a pledge or promise, taken by one chosen to perform some duty. See 67 C.J.S. Oaths and Affirmations § 1; 39 Am.Jur., Oath and Affirmation, sections 2 and 4. However, the essential elements of a valid oath do not vary with the nature of the oath. One of these is that both the person taking it and the one administering it must realize it is an oath. Although no specific form is usually required some act of each should characterize the taking and administering of the oath as such. See 39 Am.Jur., Oath and Affirmation, section 13; 67 C.J.S. Oaths and Affirmations § 6.

Chapter 472, Code of Iowa, 1954, I.C.A., governs procedure under the power of eminent domain. Section 472.7 provides:

'Commissioners to qualify. Before proceeding with the assessment all commissioners shall qualify by filing with the sheriff a written oath that they will to the best of their ability faithfully and impartially assess said damages and make written report to the sheriff.'

Compliance with statutory provisions of this nature is essential. 29 C.J.S. Eminent Domain § 295; 20 C.J., Eminent Domain, section 417d. Thomas v. Boise City, 25 Idaho 522, 138 P. 1110, 1114, an eminent domain case involving the administration of the oath to the appraisers by an unauthorized person, quotes with approval: 'All the authorities agree that the failure to take this oath (oath required by the statute) in substantially the form prescribed by law renders all the proceedings invalid * * *.'

The purported oath filed with the sheriff is as follows:

'State of Iowa--Palo Alto County--ss: We _____ do each of us solemnly swear that to the best of our knowledge and abilities we will faithfully and impartially appraise the present cash value of the property taken and the damages to the above described lands.'

(Signed by each of the six commissioners)

'Sworn to and subscribed, before me this ___ day of _____, A.D., 1955.

'__________

Notary Public in and for Palo Alto County, Iowa

'My Commission expires July 4, 1957.'

In the recent case of In re Estate of Hoyt, 246 Iowa 292, 298, 67 N.W.2d 528, 532, this court considered a similar instrument and stated:

'* * * the purported affidavit * * * was made by one Clarence D. Russell. But there is no showing it was made before any person authorized to take or administer oaths, or, for that matter, before anyone. It is signed by Russell, and below his signature appear the words 'Notary Public in and for Keokuk County, Iowa.' But there is no jurat and no signature of any notary. * * * we know of no authority which holds the administering officer may be entirely dispensed with. * * *.' The court concluded, 'The paper amounted to no more than an unverified statement. * * *.'

To the same effect is Tunis v. Withrow, 10 Iowa 305, 307, 308.

In McGillivray Bros. v. District Twp. of Barton, 96 Iowa 629, 630, 633, 65 N.W. 974, an itemized statement for a mechanics lien 'was in fact sworn to by one of the members of plaintiffs' firm, but, by mistake or oversight of the notary, the jurat was not written out in said statement, nor was the notary's name signed, nor was any impression of seal thereon. * * * The claim, therefore, was not a sworn statement, such as the law requires, and hence it could not be made the basis of a liability against the defendant.' In that case the court denied an application to amend the statement by adding a jurat. It may be well to observe that this court, under some circumstances, has allowed the amendment of jurats to be made nunc pro tunc. See Stone v. Miller, 60 Iowa 243, 249, 250, 14 N.W. 781; Stout v. Folger, 34 Iowa 71, 76, 77.

The instrument in question in the case at bar contained a blank jurat, prepared for a notary public. Apparently it had been handed the sheriff. The findings of the trial court recite the oath was apparently signed by each commissioner in the presence of the sheriff. However, the sheriff did not testify he administered the oath to the commissioners. He testified merely that the commissioners signed the paper at his request and in his presence and that they were not sworn. There is nothing in the record to indicate the sheriff knew he was authorized to administer the oath by Code section 78.2, or that he understood he was administering an oath or that the commissioners were sworn. Apparently there was no other testimony concerning the circumstances surrounding the signing and filing of the paper. None of the commissioners testified to such circumstances or that he understood he was taking an oath.

The purpose of the jurat is to prove the oath was administered. 67 C.J.S. Oaths and Affirmations § 7 states in part:

'A jurat is simply evidence of the fact that an oath was properly taken before a duly authorized officer, * * *. Where the jurat of the officer administering the oath is lacking, it has been held that the actual taking of the oath may be established by other evidence, at least where the oath is in the nature of a pledge required by a statute.'

In 1 A.L.R. 1568, and 116 A.L.R. 587, are annotations on the 'Necessity and sufficiency of officer's jurat or certificate as to oath.' June v. School District, 283 Mich. 533, 278 N.W. 676, 677, 116 A.L.R. 581, was an action for breach of a teacher's contract by a school district. The defense was failure to take a required oath. 'On the trial plaintiff testified she had taken such oath at the time of signing the contract. * * * Defendant, however, argues that the oath must be executed in the form of an affidavit, and that because of the absence of a jurat it is fatally defective.' The decision discusses cases holding the absence of a jurat to such an oath raised a presumption that the oath was not taken, and that such presumption could be rebutted by showing the oath was actually administered. It continues: 'The rule is clear that the actual taking of such an oath in the nature of a pledge may be shown by evidence on the hearing, where it does not appear by jurat that the oath was administered. * * * Because of the fact that plaintiff took the required oath, which was administered to her by an officer qualified to administer such oaths, because she further subscribed the oath, because the said oath was administered to her on the occasion and at the time when the contract was executed, plaintiff did everything required of her.'

However, the record in the case at bar is not comparable to that in the cited case. There the teacher testified she took the oath. Here the only evidence was that the commissioners signed at the request and in the presence of the sheriff and that they were not sworn. In Federal Chemical Co. v. Farmers Produce Exchange, Mo.App., 118 S.W.2d 1067, the signed instrument with blank jurat was filed with the deputy clerk who stated he failed by oversight to administer the oath. The court held this statement required the conclusion the affidavit was not sworn to.

We hold the evidence here insufficient to prove the oath was administered to the commissioners. It follows they failed to qualify and their assessment of damages to appellant's land was invalid.

II. Appellees contend certiorari was not the proper procedure and that appellant's only recourse was by appeal, 58 I.C.A. Rules of Civil Procedure, rule 306 provides: 'A writ of certiorari shall only be granted * * * or where an inferior tribunal, board or officer, exercising judicial functions, is alleged to have exceeded its, or his proper jurisdiction or otherwise acted illegally.' This Rule of Civil Procedure and R.P.P. 308, abolish the provision in the former statute, Code 1939, section 12456, that certiorari was not proper if there was another plain, speedy and adequate remedy.

State ex rel. Rankin v. Peisen, 233 Iowa 865, 10 N.W.2d 645, holds certiorari will lie where the trial judge reaches an illegal conclusion based upon stipulated and undisputed facts. Massey v. City Council of City of Des Moines, 239 Iowa 527, 31 N.W.2d 875, holds the provision in the Rule limiting certiorari to cases where the respondent is exercising judicial functions does not mean judicial functions in the strict or technical sense in which the term is used when applied to courts, and that certiorari will lie if the act is of a quasi-judicial character. The Massey case holds also the elimination of the requirement that there is no other plain, speedy and adequate remedy, indicates a purpose to broaden the scope of review by...