Peterson v. Bd. of Review of Clarence

• Decision Date: 10 June 1908
• Citation: 138 Iowa 717,116 N.W. 818
• Parties: PETERSON v. BOARD OF REVIEW OF TOWN OF CLARENCE.
• Court: Iowa Supreme Court

138 Iowa 717

116 N.W. 818

PETERSON

v.BOARD OF REVIEW OF TOWN OF CLARENCE.

Supreme Court of Iowa.

June 10, 1908.

Appeal from District Court, Cedar County; Milo P. Smith, Judge.

The opinion states the case. Appeal dismissed.

W. G. W. Geiger, for appellant.

Chas. W. Kepler & Son, for appellee.

WEAVER, J.

The record presented in this case is somewhat anomalous. So far as the abstracts are concerned, the action appears to have been brought as an original action in equity to secure the reduction of an alleged excessive assessment of appellant's moneys and credits for the purposes of taxation, and, except for certain statements and expressions in the briefs of counsel, there is nothing whatever shown from which we may understand that the proceeding originated as an appeal from the action of the board of review. It is too clear for argument that, the statute having provided for an appeal from an assessment as finally settled by the board of review, an original action in equity will not lie for its review or cancellation, except where the board has acted without jurisdiction. See Carpenter v. Jones County, 130 Iowa, 494, 107 N. W. 435;Stevens v. Carroll, 130 Iowa, 463, 104 N. W. 433;Crawford v. Polk County, 112 Iowa, 118, 83 N. W. 825;Lake City Elec. L. Co. v. McCrary, 132 Iowa, 624, 110 N. W. 19. To give the district court jurisdiction to review the action of a board of equalization a written notice of appeal must be served within 20 days. Code, § 1373; Marion v. Investment Co., 122 Iowa, 629, 98 N. W. 488;City Council v. Railroad Co., 120 Iowa, 259, 94 N. W. 501;Frost v. Board, 114 Iowa, 103, 86 N. W. 213. While a notice duly served is sufficient to give the court jurisdiction, such notice of itself presents nothing on which the court may try the merits of the appeal, but to that end the appellant must provide and file a proper transcript of the proceedings of the board with reference to the assessment in controversy. Marion v. Railway Co., 120 Iowa, 261, 94 N. W. 501. Such transcript is required, not only that the proceedings upon which the appeal is based may be clearly and fairly brought to the attention of the court, but that the record may furnish a proper basis upon which to render a decree. Marion v. Investment Co., 122 Iowa, 631, 98 N. W. 488.

Now, the record in the case at bar is wholly barren of any allegation or showing that any notice of appeal was ever served, or that any transcript was ever made or filed. This omission of the notice goes to the jurisdiction of the district court, and consequently to the jurisdiction of this court; and, unless the defect is cured or waived by the statement in appellee's brief that “this is an appeal from the board of review,” we are not authorized to consider the questions raised by counsel upon the merits of the controversy, even though the appellee has not raised the objection. McManus v. Swift, 76 Iowa, 576, 41 N. W. 364;Whiton v. Fuller, 77 Iowa, 599, 42 N. W. 500. But, even if we assume that an appeal has been taken, we are still without a transcript to which to look to ascertain what complaint the appellant made to the board of review or the action of the board thereon. We have held that the allegations of a petition filed by the plaintiff in the district court after an appeal is taken will not serve as a substitute for a transcript setting forth in...