Scoular-Bishop Grain Co. v. Iowa State Highway Commission

• Citation: 140 N.W.2d 115,258 Iowa 1003
• Decision Date: 08 February 1966
• Docket Number: No. 51975,SCOULAR-BISHOP,51975
• Parties: GRAIN CO., a Corporation, Appellee, v. IOWA STATE HIGHWAY COMMISSION, Appellant.
• Court: United States State Supreme Court of Iowa

Page 115

140 N.W.2d 115

258 Iowa 1003

SCOULAR-BISHOP GRAIN CO., a Corporation, Appellee, v. IOWA STATE HIGHWAY COMMISSION, Appellant.

No. 51975.

Supreme Court of Iowa.

Feb. 8, 1966.

Rehearing Denied April 5, 1966.

Lawrence F. Scalise, Atty. Gen., Raymond T. Walton, Sp. Asst. Atty. Gen., L. Michael McGrane, Asst. Atty. Gen., Ames, for John Leroy Peterson, Council Bluffs, for appellant.

Ross, Johnson, Stuart, Tinley & Peters, Council Bluffs, for appellee.

MASON, Justice.

Iowa State Highway Commission instituted condemnation proceedings to acquire part of a tract of land in Pottawattamie County, owned by plaintiff, for primary road right of way and other specified related purposes. The entire tract was mortgaged to Northwestern Mutual Life Insurance Company. A condemnation jury was appointed and on April 7, 1964, made a joint award of $49,200 to the landowner and mortgagee.

Notice of appeal to the district court directed to the sheriff of Pottawattamie County, Iowa State Highway Commission and the attorney general was accepted by the sheriff on May 4, 1964, and served on the condemnor on May 5 by delivery of a true copy to the attorney general.

On May 7 plaintiff caused notice of appeal directed to the same parties and Northwestern Mutual Life Insurance Company to be delivered to the Polk County sheriff for service on Northwestern Mutual Life Insurance Company, Des Moines, which notice of appeal was served May 12 by delivery of a true copy to mortgagee's general agent.

July 9 plaintiff filed its petition at law in the appeal and named as defendants Iowa State Highway Commission and also Northwestern Mutual Life Insurance Company who was not joined on appeal by appellant. The highway commission filed motion to strike on July 29 which did not challenge the court's jurisdiction. Such motion was not submitted to the court. August 6, 1965, plaintiff amended certain portions of its petition, and on August 15 defendant filed a motion to dismiss, stating as grounds therefor the trial court was without jurisdiction over the subject matter for the reason notice of appeal was not given Northwestern Mutual Life Insurance Company within the time required by the condemnation statute, sections 472.17 to 472.19, Code, 1962.

September 9 the trial court overruled the highway commission's motion.

September 14 defendant filed answer, stating as a separate defense the court was without jurisdiction for the reasons set forth in its motion to dismiss, that is, Northwestern Mutual Life Insurance Company was an adverse party and plaintiff failed to serve it with notice of appeal within the time required by sections 472.17 to 472.19.

On the same day defendant filed application for separate adjudication of law points, stating the highway commission, in its answer, raised a point of law which goes to the whole of the case and requesting the court separately hear and determine the point of law raised by defendant in its answer, prior to trial of the cause.

September 22 the trial court denied the highway commission's legal defense based upon want of jurisdiction over the appeal. Defendant's application to this court for permission to take interlocutory appeal was granted. Rule 332, Rules of Civil Procedure.

I. Failure to serve notice of appeal on the mortgagee within 30 days after the assessment was made gives rise to defendant's claim the district court was without jurisdiction to determine the appeal to it because of the absence of a necessary party. Section 472.18 provides:

'Any party interested may, within thirty days after the assessment is made, appeal therefrom to the district court, by giving the adverse party, his agent or attorney, and the sheriff, written notice that such appeal has been taken.'

It is settled in Iowa that a mortgagee is an adverse party on whom notice of appeal must be served when a condemnation commission award is appealed to the district court. Bisenius v. Palo Alto County, 256 Iowa 196, 127 N.W.2d 128, 129; Griffel v. Northern Natural Gas Company, Iowa, 136 S.W.2d 265, 268, where the reasoning leading to this conclusion and the test to be applied in determining who is an adverse party to be given notice of appeal are set forth and authorities are collected.

The district court is an appellate court in condemnation cases, Bisenius v. Palo Alto County, supra.

The right to appeal is purely a creature of statute. If an appeal is to be taken, notice thereof must given in substantial compliance with the statute. Failure to serve an adverse party within the time provided by section 472.18 is fatal to the jurisdiction of the district court. Griffel v. Northern Natural Gas Company, supra.

The mortgagee Northwestern Mutual Life Insurance Company was such adverse party. No notice of appeal was served on it within the 30 days required by section 472.18. Such failure was fatal to the jurisdiction of the district court. The fact the second notice of appeal was delivered to the Polk County sheriff on May 7, the 30th day after the assessment, does not help plaintiff here. We have held failure to serve notice on an adverse party in such appeals is not cured by delivery of the notice to the sheriff within the 30 days. Rule 49, R.C.P., is not applicable to the type of action here contemplated. Mazoli v. City of Des Moines, ...