Tinker v. Board of Sup'rs of Kossuth County, Iowa

• Decision Date: 18 August 1923
• Docket Number: 66,67.
• Parties: TINKER v. BOARD of SUP'RS of KOSSUTH COUNTY, IOWA, et al. ANDERSON v. SAME.
• Court: U.S. District Court — Northern District of Iowa

292 F. 863

TINKER v. BOARD of SUP'RS of KOSSUTH COUNTY, IOWA, et al.

ANDERSON v. SAME.

No. 66, 67.

United States District Court, N.D. Iowa, Central Division.

August 18, 1923

J. L Bonar, of Algona, Iowa, for Tinker.

J. L Bonar, of Algona, Iowa, and Kelleher & Mitchell, of Ft Dodge, Iowa, for Anderson.

T. P. Harrington, of Algona, Iowa, and Healy & Breen, of Ft. Dodge, Iowa, for defendants.

SCOTT District Judge.

The proceeding in which the above-entitled controversies arise was one to establish drainage district No. 165 in Kossuth county, Iowa, and to construct a system of drainage and assess the cost of construction upon land situate within the district. By proceedings presumably appropriate, the board of supervisors of Kossuth county caused to be established drainage district No. 165, within the limits of which George H. Tinker and A. K. Anderson each owned a quarter section of land. In such proceeding the board of supervisors appointed commissioners to view and classify the lands in said district, and to apportion to said lands the cost of said drainage district and improvements, which commission proceeded in the execution of these duties and in due time reported their doings to said board of supervisors. Subsequently, and within the time provided by law, Tinker and Anderson each separately filed his objections to the classification and assessment of benefits as fixed by said commission, and at the hearing said objections were overruled and a resolution was passed confirming the benefits as reported. Within the proper limit of time Tinker and Anderson each attempted the perfection of an appeal to the district court of the state of Iowa for Kossuth county, in pursuance of certain provisions of the Iowa statute. I say attempted the perfection of such an appeal, because each of such appeals is now challenged.

Section 1989a6 of the Iowa Code Supplement 1913, providing for appeals in respect to the assessment of damages, is as follows:

'Any party aggrieved may appeal from the findings of the board in establishing or refusing to establish the improvement district or from its finding in the allowance of damages to the district court by filing notice with the county auditor at any time within twenty days after such finding, at the same time filing a bond with the county auditor, approved by him, and conditioned to pay all costs and expenses of the appeal unless the finding of the district court shall be more favorable to the appellant or appellants than the finding of the board.'

Section 1989a14 of the Iowa Code Supplement 1913, with respect to appeals from assessments of benefits, provides:

'An appeal may be taken to the district court from the order of the board fixing the assessment of benefits upon the lands in the same manner and time as herein provided for appeals from the assessment of damages. * * * The appeal herein provided for shall be tried in the district court as an action in equity. * * * In all actions or appeals involving or affecting the drainage district, the board of supervisors shall be a proper party for the purpose of representing the drainage district and all interested parties therein, other than the adversary parties thereto; * * * in all appeals or actions adversary to the district, the appellant or complaining party shall be entitled the plaintiff, and the board of supervisors and drainage district it represents, the defendants. * * *'

Within the 20 days mentioned Tinker and Anderson, respectively, presented to and filed with Earl F. Peterson, county auditor of Kossuth county, notices of appeal addressed as follows:

'To the Honorable Board of Supervisors of Kossuth County, Iowa, All Petitioners for Said Drainage District No. 165 of Kossuth County, Iowa, and All Persons Interested in Said Drainage District No. 165 of Kossuth County, Iowa.'

The parties addressed in the notice were by its terms notified that the respective appeals would come on for hearing at the January, 1923, term of said district court to be held at the courthouse in Algona, Iowa, on the 29th day of January, 1923.

On January 11, 1923, Tinker and Anderson, respectively, docketed their appeals in the district court of Kossuth county, Iowa, by filing a pleading denominated a petition in equity, in which was set forth, in detail, proceedings had before the board of supervisors, including the objections filed by the appellants, to which was attached a transcript of the notice of appeal.

On the 29th day of January, 1923, said Tinker and Anderson each in his respective cause filed his petition for removal in such cause to this court, alleging diversity of citizenship and the requisite amount to be involved, and on the 13th day of February, 1923, an order of removal was duly entered in the state court, and on February 26, 1923, a transcript was filed and said cause docketed in this court.

At the June, 1923, term of this court, J. M. Moore, Olaf Funnemark, F. J. Balgeman, C. O. Peterson, and Chas. Morris, alleging themselves the sole members of the board of supervisors of Kossuth county, and said board of supervisors, filed special appearances in this court in said respective causes, challenging the jurisdiction of this court and moving to dismiss the causes for want of jurisdiction, and as alternative relief to remand said causes to the district court of Iowa for Kossuth county.

The grounds for removal...