Scott v. LaSell

• Decision Date: 09 March 1887
• Parties: SCOTT v. LASELL AND OTHERS.
• Court: Iowa Supreme Court

71 Iowa 180

32 N.W. 322

SCOTT

v.LASELL AND OTHERS.

Supreme Court of Iowa.

March 9, 1887.

Appeal from circuit court, Shelby county.

The plaintiff is a claimant of damages caused by the establishment of a highway through his land. The board of supervisors allowed him $260. From the order he appealed to the circuit court, but did not pay the filing fee by noon of the first day of the next succeeding term, and, on motion of the defendant, the court affirmed the order of allowance, and from that ruling the plaintiff appeals.Smith & Cullison, for appellant.

Beard & Myerly, for appellees.

ADAMS, C. J.

The rule of practice under which the motion was sustained is in these words: “In appeals from justices' courts or other inferior tribunals, in civil cases, the appellant shall cause the case to be docketed, and the docketing and filing fee to be paid by noon of the first day of the term to which the case is returnable, and, in case of his failure so to do, the appellee may pay such filing fee, and have the case docketed, and will thereupon be entitled to have the judgment below affirmed, or to have the case set down for trial on its merits, as he may elect.”

1. The motion of appeal in this case, it appears, was served on the twenty-ninth day of September, 1885. The next term of court commenced October 20, 1885. The first question presented is as to whether the case was returnable, within the meaning of the rule, to that term. The plaintiff insists that it was not. There does not appear to be any express provision as to the time which should elapse between the service of notice of appeal and the first day of the term at which the case should be deemed triable. But, following such analogies as we have, we think that it should be at least 10 days. In this case the time was 21 days. Notice of appeal, however, was not filed in the auditor's office until October 10th, and by statute he had 10 days after that in which to make out and file in the clerk's office a transcript. The last day of the time within which he should file the transcript was the first day of the term, and the appellant's position is that where the transcript is not due from the auditor, and is not in fact filed, as in this case, until after the commencement of the term, the case could not be deemed triable at that term. But, in our opinion, the appellant's position cannot be sustained. The notice of appeal might have been filed with the auditor several days sooner than it was. The appellees, when they were served with notice of appeal, were bound to assume that the case would be ready for trial at the next term, and govern themselves accordingly. They ought not to be affected by the...