State v. Weimer
| Court | United States State Supreme Court of Iowa |
| Citation | 20 N.W. 171,64 Iowa 243 |
| Parties | THE STATE v. WEIMER |
| Decision Date | 22 July 1884 |
THE STATE
v.
WEIMER
Supreme Court of Iowa, Des Moines
July 22, 1884
Appeal from Lee District Court.
DEFENDANT was convicted of obstructing a highway, and now appeals to this court.
REVERSED.
H. Lohmar and Miller & Son, for appellant.
Smith McPherson, Attorney-general, for the State.
OPINION
[64 Iowa 244] BECK, J.
I.
The only evidence introduced by the state to prove that the road, for the obstructing of which defendant was indicted, is a lawfully established highway, consists of the commissioners' road record, a book in the custody of the auditor of the county, and an official copy of the original plat of the road. There was evidence tending to show that the road indicated by these records had been opened, and afterwards obstructed by defendant.
The road record fails to show that the notice required by the statute, Code, § 936, had been given, and there is no recitation or averment therein tending to show that any notice was given to defendant upon whose land, it appears to be claimed, the road was located. Nor does the record show that defendant appeared in the proceeding, and thus waived service of notice. It is recited that the road was "by consent of attorneys of parties herein, and request of board, declared to be forty feet in width." But it is not shown by the record, nor by evidence aliunde, if, indeed, it were competent, which we do not determine, that defendant appeared to the proceedings, or had notice thereof at any time, or that he was a party to the case before the supervisors. The defendant proposed to prove that, by an agreement between the board of supervisors and himself, the road was to be established as of the width of thirty-three feet. But, upon the objection of the state, this evidence was rejected. There was no evidence of any character tending to show that defendant was served with the notice required by law, or waived service thereof.
[64 Iowa 245] II. This court has held in a similar case that, as the petition and notice required by law in proceedings to establish roads are necessary to confer jurisdiction upon the supervisors in road cases, they must be shown by the record, and that, in the absence of such showing, no presumption will obtain in support of the jurisdiction of the supervisors. The State v. Berry, 12 Iowa 58. There being no evidence that the supervisors acquired jurisdiction to establish the road in this case, and no presumption thereof...
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Heery v. Roberts, 32328
...of the proceedings for want of notice. The cases cited by appellee at this point hold nothing to the contrary. All that State v. Weimer, 64 Iowa 243, 20 N.W. 171, holds, is that, where one is indicted for obstructing an alleged highway over his own land, [186 Iowa 70] and the record fails t......
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Moffit v. Brainard
...was absolutely void. Snyder v. Foster, 77 Iowa 638, 42 N.W. 506; Railway Co. v. Ellithorpe, 78 Iowa 415, 43 N.W. 277; State v. Weimer, 64 Iowa 243, 20 N.W. 171; State v. Anderson, 39 Iowa 274; McBurney v. Graves, 66 Iowa 314, 23 N.W. 682; [92 Iowa 125] State v. Minneapolis & St. L. Ry. Co.,......
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Heery v. Roberts, 32328.
...for want of notice. The cases cited by appellee at this point hold nothing to the contrary. All that State v. Weimer, 64 Iowa, 243, 20 N. W. 171, holds is that, where one is indicted for obstructing an alleged highway over his own land, and the record fails to show that any notice was serve......
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Manning v. Burlington, C. R. & N. R. Co.
...a safe condition, or if you find it was the duty of another sweeper to do so, that they both, or either of them, neglected to do so, then [20 N.W. 171]the plaintiff cannot recover in this action.” It is not claimed the plaintiff was engaged in operating a railroad, and therefore his rights ......