Pobbeldt v. Hamilton Cnty. (In re Farley Drainage Dist. No. 7)

• Decision Date: 16 March 1909
• Citation: 120 N.W. 83
• Parties: IN RE FARLEY DRAINAGE DIST. NO. 7. POBBELDT v. HAMILTON COUNTY ET AL.
• Court: Iowa Supreme Court

120 N.W. 83

IN RE FARLEY DRAINAGE DIST. NO. 7.

POBBELDT

v.HAMILTON COUNTY ET AL.

Supreme Court of Iowa.

March 16, 1909.

Appeal from District Court, Hamilton County; W. D. Evans, Judge.

An appeal from an assessment of benefits. Dismissed.Wesley Martin, for appellant.

J. M. Blake and D. C. Chase, for appellees.

SHERWIN, J.

The drainage district in question was petitioned for by some 10 or 12 persons. It was duly established and the ditch was constructed. The plaintiff was assessed benefits on 15 40-acre tracts, and appealed from such assessment to the district court, where the assessments were sustained, and he appeals.

The notice of appeal from the action of the board of supervisors was served on the county and drainage district, but not on any of the petitioners for the district. Nor has notice of appeal to this court been served on any of the petitioners. The appellees moved in this court to dismiss the appeal on the ground that none of the petitioners for the ditch had been made parties to the appellate proceedings, and the motion was ordered submitted with the case. We have heretofore held that the parties affected by the assessment of damages and benefits are necessary parties to appellate proceedings, and that a failure to serve notice of appeal on the four persons first named in the petition was fatal to the jurisdiction of the court. Yockey v. Woodbury County, 130 Iowa, 412, 106 N. W. 950;Henderson v. Calhoun County, 129 Iowa, 119, 105 N. W. 383;Gish v. Castner-Williams & Askland Drainage Dist., 136 Iowa, 155, 113 N. W. 757; Poage v. Grant Township Ditch (decided at the present session) 119 N. W. 976. Since the appeal was taken from the board of supervisors, the Thirty-Second General Assembly passed an act authorizing boards of supervisors where appeals are taken from any order made by them to employ counsel to represent the interests of the drainage district affected by said appeal on the trial thereof in the appellate courts. Acts 32d Gen. Assem. 1907, p. 100, c. 95. But this act does not change the necessity of notice to confer jurisdiction on the appellate courts, and the mere fact that attorneys appear for the interest of the drainage district under the employment of the board of supervisors does not change the rule. In such cases the attorneys so employed do not appear for the individual petitioners, and such petitioners are not bound by their acts. Jurisdiction cannot be acquired by assuming to have it, and the fact...