State ex rel. Iowa State Highway Commission v. Read

• Decision Date: 16 April 1975
• Docket Number: No. 2--56848,2--56848
• Citation: 228 N.W.2d 199
• Parties: STATE of Iowa ex rel. IOWA STATE HIGHWAY COMMISSION, Appellant, v. Lawrence F. READ et al., Appellees.
• Court: Iowa Supreme Court

Page 199

228 N.W.2d 199

STATE of Iowa ex rel. IOWA STATE HIGHWAY COMMISSION, Appellant, v. Lawrence F. READ et al., Appellees.

No. 2--56848.

Supreme Court of Iowa.

April 16, 1975.

Richard C. Turner, Atty. Gen., and Franklin W. Sauer, Asst. Atty. Gen., for appellant.

Earl W. Sutton, Des Moines, for appellees Read, and Steven M. Hanson, of Irish, Skinner & Weislander, Altoona, for appellees Kraus.

Heard by MOORE, C.J., and MASON, LeGRAND, REES and McCORMICK, JJ.

McCORMICK, Justice.

This appeal involves jurisdictional questions in an eminent domain proceeding. Plaintiff highway commission condemned Polk County land of defendants Gerald Kraus and Donna J. Kraus, contract purchasers, and Lawrence F. Read and Thelma M. Read, contract vendors, for a road improvement. The jurisdictional problems arose when plaintiff attempted to appeal the compensation commission award to the district court. The trial court sustained special appearances filed by defendants challenging the court's jurisdiction to try the appeal. We reverse.

Defendants Kraus contended in their special appearance that the district court lacked subject matter jurisdiction of the appeal. Defendants Read repeated this contention in their special appearance and alleged in addition that the court lacked personal jurisdiction over them. The ruling of the court was based on a finding that the court was without subject matter jurisdiction. Plaintiff's appeal presents two questions. Did the district court have subject matter jurisdiction of the condemnation appeal? And, did the district court have jurisdiction of the interests of the Reads for purposes of the condemnation appeal?

The special appearances were heard on stipulated facts. The stipulation recited the sequence of events after the compensation commission reported its award for damages and attorney fees on June 7, 1973.

Plaintiff deposited checks for the award with the Polk County sheriff on June 20, 1973. Defendants and others affected by the condemnation were the payees on the checks. An attorney for defendants picked up the checks from the sheriff on June 22, 1973. The checks were subsequently cashed. Plaintiff gave notice of appeal of the award to the sheriff on June 27, 1973. Defendants Kraus, residents of Iowa, were served with notice of appeal on June 28, 1973. Defendants Read, residents of Kansas, were personally served with notice of appeal in Kansas on July 5, 1973.

The stipulated facts do not show the award was deposited with the sheriff pursuant to § 472.25, The Code. That statute provides a means by which a condemnor may deposit the award with the sheriff in order to obtain immediate possession of the condemned property:

'Upon the filing of the commissioners' report with the sheriff, the applicant may deposit with the sheriff the amount assessed in favor of a claimant, and thereupon the applicant shall, except as otherwise provided, have the right to take possession of the land condemned and proceed with the improvement. No appeal from said assessment shall affect such right, except as otherwise provided. Upon appeal from the commissioners' award of damages the district court, wherein said appeal is pending, may direct that such part of the amount of damages deposited with the sheriff, as it finds just and proper, be paid to persons entitled thereto. If upon trial of said appeal a lesser amount is awarded the difference between the amount so awarded and the amount paid as above provided shall be repaid by the person or persons to whom the same was paid and upon failure to make such repaymejnt the party entitled thereto shall have judgment entered against the person or persons who received such excess payment.'

From the stipulated facts it does not appear the deposit in this case was subject to the statute or any other condition or limitation. If plaintiff intended to proceed under the statute or to condition or limit delivery of the checks to defendants, we believe it had a duty to instruct the sheriff accordingly. The stipulation does not indicate the sheriff received any instructions from plaintiff when the checks were deposited, and plaintiff did not notify the sheriff of its intention to appeal until five days after he delivered the checks to defendants.

I. Defendants contend payment of the award prior to giving notice of appeal deprived the district court of jurisdiction of the subject matter of the condemnation appeal. This contention confuses the concept of subject matter jurisdiction with the concept of waiver of the right to appeal.

Jurisdiction of the subject matter is the power to hear and determine cases of the general class to which the proceeding belongs. City of Clinton v. Owners of Property, etc., 191 N.W.2d 671, 677 (Iowa 1971), and citations. It is an abstract question unrelated to the rights of the parties on the merits of a given case. Groves v. Donohue, 254 Iowa 412, 118 N.W.2d 65 (1962). Subject matter jurisdiction cannot be conferred or ousted by acts of the parties or procedures employed in particular litigation. Appeal of McLain, 189 Iowa 264, 269, 176 N.W. 817, 819 (1920).

The district court is given subject matter jurisdiction of condemnation appeals by § 472.18, The Code. Bales v. Iowa State Highway Commission, 249 Iowa 57, 60, 86 N.W.2d 244, 246 (1957). The issue for hearing and determination on appeal is the damages by reason of the taking. Stellingwerf v. Lenihan, 249 Iowa 179, 183, 85 N.W.2d 912, 915 (1957).

Thus the district court had the power, by operation of law, to hear and determine the issue of damages occasioned by the condemnation in the present case. Payment of the award could not deprive the court of that power. Therefore the payment did not divest the court of jurisdiction of the subject matter of the appeal.

Payment of the award does raise an issue of waiver of the right to appeal. Although a condemnor does not waive the right of appeal by depositing the award with the sheriff under the terms of Code § 472.25, the right of appeal is waived when the condemnor, with knowledge of the circumstances, voluntarily and intentionally pays the award other than under that statute. Cook County v. Malysa, 39 Ill.2d 376, 235 N.E.2d 598 (1968); State v. Smithrock Quarry, Inc., 49 Wash.2d 623, 304 P.2d 1043 (1956); annot., 40 A.L.R.3d 203; see Hegtvedt v. Prybil, 223 N.W.2d 186, 188--189 (Iowa 1974); Burns v. C., Ft. M. & D.M. Ry. Co., 102 Iowa 7, 70 N.W. 728 (1897). It does not matter whether the payment occurs before or after notice of appeal is given. See Credit Industrial Co. v. Bendixen, 255 Iowa 1020, 125 N.W.2d 262 (1963).

However, waiver is an affirmative defense; it is not jurisdictional. The issue cannot be raised by special appearance. A special appearance raises only jurisdictional issues. Rule 66, Iowa Rules of Civil Procedure; see Reynolds v. Nowotny, 189 N.W.2d 557, 562 (Iowa 1971)....