Town of Waconia, In re

• Decision Date: 07 May 1957
• Docket Number: No. 49157,49157
• Citation: 82 N.W.2d 762,248 Iowa 863
• Parties: Matter of the Incorporation of the TOWN OF WACONIA, Iowa.
• Court: Iowa Supreme Court

Page 762

82 N.W.2d 762

248 Iowa 863

Matter of the Incorporation of the TOWN OF WACONIA, Iowa.

No. 49157.

Supreme Court of Iowa.

May 7, 1957.

John D. Randall, Merle D. Fischel, Cedar Rapids, for appellants.

C. W. Garberson, Donnelly, Lynch, Lynch & Dallas, Cedar Rapids, for appellee.

HAYS, Justice.

This appeal involves the priority of proceedings to incorporate certain real estate into a town of Waconia, Iowa, as against proceedings by the City of Cedar Rapids, Iowa to annex the same territory. The basic question is, however, one of procedure.

On September 27, 1955, the City Council of Cedar Rapids adopted a resolution ordering publication of notice of intention of the Council to meet on October 6th for the purpose of considering a proposed resolution for the annexation of the territory in question, as is authorized by Section 362.26, Code 1954, I.C.A. The notices were duly published on September 28th and October 5th. On October 6th the Council adopted a resolution calling for an election on the proposed annexation.

On September 28, 1955, Petitioners--land owners in the territory involved--filed with the Clerk of the Court a petition to incorporate a town to be known as Waconia. On the same date the Court entered an order (termed a judgment and decree) appointing five commissioners to call and hold an election, as is authorized by Sections 362.1 to 362.7, incl.

On October 7th, the City of Cedar Rapids filed in said cause in the District Court a petition of intervention, setting forth the matters above related and asking that the order entered on September 28 be rescinded, due to the lack of jurisdiction of the Court to enter the same. Date for hearing on the intervention was set for October 10, an which date Petitioners filed a special appearance questioning the status of the City as an intervenor. October 12th the Court overruled the special appearance. Counsel for Petitioners refused to participate further and after a hearing on the intervention, the order of September 28th was rescinded. The Trial Court found that the first step taken by the City of Cedar Rapids was prior to the filing of the petition by the Petitioners, thus depriving the Court of jurisdiction to entertain the petition to incorporate. On October 19th, Petitioners filed a motion to dismiss, and a motion to strike the petition of intervention on the grounds that Intervenors were mere interlopers and without authority under Rules 75 to 77, R.C.P., 58 I.C.A.; also, that at the time the order rescinding the order of September 28th was made, the Court lacked authority to so rescind. The motions were overruled and Petitioners have appealed.

Three propositions are urged by Appellants: (1) Power of Court to rescind the order of September 28th; (2) Sufficiency of the action taken by the City Council on September 27th to deprive the Trial Court of jurisdiction to act under Sections 362.1 to 362.7, incl.; and (3) Right of the City of Cedar Rapids to intervene in the matter before the Court.

I. It appears without dispute that all of the orders and proceedings in question were made during the same term of the District Court. Conceding for the moment that the intervention was authorized, the Trial Court had ample authority to rescind the order of September 28, 1955. In re Incorporation of Windsor Heights, 232 Iowa 143, 4 N.W.2d 859.

II. Again assuming intervention to be a proper procedure, the question of the priority of proceedings, i.e., annexation by the City of Cedar Rapids, and, incorporation upon petition of Appellants was properly determined by the Trial Court under our recent decision in State ex rel. Mercer v. Incorporated Town of Crestwood, Iowa, 80 N.W.2d 489, wherein an almost identical factual situation existed.

III. Appellants' final proposition is that Appellees had no status as intervenors in the proceedings, the same not being within the purview of Rules 75 to 77, incl., R.C.P.

The situation presented is, to say the least, a novel one. Rule 75, R.C.P., provides: 'Any person interested in the subject matter of the litigation, or the success of either party to the action, or against both parties, may intervene at any time before trial begins, by joining with Plaintiff or Defendant or claiming adversely to both.' Appellee, Intervenor, alleged an interest in the subject matter of the petition filed by the Appellants. It asked for relief adverse to Appellants' contention. Upon the filing of the petition of intervention, the Trial Court ordered Intervenor to serve petitioners with a copy thereof within a prescribed time. It provided that said Petitioner should move or plead thereto not later than 10 A.M., October 10th. Said intervention was set for hearing on October 11th. On the 10th Petitioners filed a socalled special appearance.

Rule 66, R.C.P., authorizes a defendant to appear specially, for the sole purpose of attacking the jurisdiction of the Court. Rule 104(a) provides, 'Want of jurisdiction of the person, or insufficiency of the original notice, or its service must be raised by special appearance * * *; and want of jurisdiction of the subject matter may be so raised.' The special appearance does not question the jurisdiction of the person of Petitioners, and clearly Petitioners, having selected this forum, consented to the jurisdiction of the Court over their persons as to all legitimate matters that might arise in connection with such proceeding. While notice of such intervention was, by Court order, given to Petitioners, such notice was not necessary except as the Court might order a response thereto at an earlier date than otherwise was allowed by our Rules. Massachusetts Bonding & Ins. Co. v. Novotny, 200 Iowa 227, 202 N.W. 588. Nor do we find any direct contention in the special appearance to the effect that the Court did not have jurisdiction of...