Seibert v. Lovell

• Decision Date: 13 December 1894
• Citation: 61 N.W. 197,92 Iowa 507
• Parties: PETER SEIBERT, Appellant, v. ROYAL LOVELL et al., Members of the Board of Supervisors
• Court: Iowa Supreme Court

61 N.W. 197

92 Iowa 507

PETER SEIBERT, Appellant, v. ROYAL LOVELL et al., Members of the Board of Supervisors

Supreme Court of Iowa, Des Moines

December 13, 1894

Appeal from Hancock District Court.--HON. P. W. BURR, Judge.

PROCEEDING by certiorari to test the legality of the action of the board of supervisors of Hancock county, Iowa in establishing a drainage district. Judgment against plaintiff, and he appeals.--Affirmed.

THE facts in this case are that on July 10, 1893, a petition was filed with the county auditor of Hancock county, Iowa signed by the requisite number of persons who were residents citizens, and legal voters of said county, asking for the establishment of a drainage district, to embrace certain lands described in said petition. A proper bond was filed conditioned as provided by law in such cases. On the same date the auditor appointed a commissioner and engineer, who examined said district of lands, and filed his report, with plat and profile, recommending the construction of ditches at an estimated expense of nine thousand, six hundred and fifty-seven dollars and five cents, and an estimate that four thousand, one hundred and ten acres of land would be benefited. Thereafter, and on January 23, 1894, the report was placed before the board of supervisors for action, and the time for its consideration was fixed for February 27 1894, and the auditor directed to give notice thereof. Said notice was given. On the day set for hearing a remonstrance was filed by a large number of persons whose names were also on the petition, as well as by some others, including plaintiff. At the same time a large number of persons who had signed the petition, as well as some others, signed and filed a protest against the establishment of the proposed ditch and said protestants moved the board to dismiss and reject the petition because it did not have the number of signers required by law. The board continued the hearing until April 2, 1894, when the protestants objected to the petition because of the one hundred and four original signers thereto sixty-five had "retracted" their names, and signed a remonstrance; that there was not the requisite number of petitioners to give the board jurisdiction; and that the number of acres comprising the territory within which said proposed ditch was to run had been in some places diminished and in others increased since the petition was signed. The board found that one hundred and four legal voters had signed the petition; that the bond was filed as required by law; that the auditor appointed a commissioner, who made proper report, showing the necessity for such drainage; that the petition was signed by the required number of legal voters; and approved of the acts of the auditor and commissioner, and overruled the motion to dismiss the petition and the objections filed to the petition, granted the prayer of the petitioners, and established the drainage district. They also took other action as to the ascertainment of damages to persons affected by the ditch. This proceeding is by certiorari to test the legality of the board's action. On the hearing the district court found that in all respects the law had been complied with, and the proceedings were approved, and plaintiff was adjudged to pay the costs; to all of which he excepted.

AFFIRMED.

Richard Wilbur and C. L. Nelson for appellant.

W. E. Bradford for appellees.

OPINION

KINNE, J.

I.

But two questions need be considered on this appeal: First when was jurisdiction obtained over the subject-matter of the action; and, second, if jurisdiction once attached, could the power of the board to act be defeated by any subsequent action on part of a part of the petitioners, by their protesting or remonstrating or withdrawing their names from the...