Van Der Burg v. Bailey

• Decision Date: 12 February 1929
• Docket Number: 39442
• Citation: Van Der Burg v. Bailey, 207 Iowa 797, 223 N.W. 515 (Iowa 1929)
• Parties: J. W. VAN DER BURG et al., Appellees, v. J. D. BAILEY et al., Appellants
• Court: Iowa Supreme Court

223 N.W. 515

207 Iowa 797

J. W. VAN DER BURG et al., Appellees, v. J. D. BAILEY et al., Appellants

No. 39442

Supreme Court of Iowa, Des Moines

February 12, 1929

Appeal from Sioux District Court.--B. F. BUTLER, Judge.

An appeal from the action of the district court dismissing an appeal taken by J. D. Bailey and Grace Bailey from the action of the board of supervisors of Sioux County.

Affirmed.

Klay & Klay, for appellants.

Hatley & Van de Steeg, for appellees.

ALBERT C. J. STEVENS, DE GRAFF, MORLING, and WAGNER, JJ., concur.

OPINION

ALBERT, C. J.

In January, 1928, there was a contest before the board of supervisors of Sioux County, participated in by the owners of five different newspapers, three of which were to be selected as the official county newspapers for the year 1928. The contest was determined against J. D. and Grace Bailey, and in favor of J. W. and W. G. Van der Burg; and the Baileys attempted to appeal from this action by the board of supervisors by presenting a notice of appeal to Hatley & Van de Steeg, who accepted due, legal, and timely service on January 28, 1928, as attorneys for the appellees. The Van der Burgs were represented by Attorneys Hatley & Van de Steeg in the contest before the board, and the Baileys by Klay & Klay. The Van der Burgs entered special appearance, and moved to quash the notice and dismiss the appeal for want of jurisdiction. This motion was accompanied by the affidavits of W. G. and J. W. Van der Burg. By these affidavits,--which are uncontradicted,--it is shown that Hatley & Van de Steeg were employed and paid in advance for the trial of this matter before the board of supervisors, and that, after they accepted service of the notice of appeal, they called the Van der Burgs to the office, and advised them what had been done; and they refused to ratify or confirm the action of the attorneys in accepting service of the notice of appeal.

The point made as to want of jurisdiction of the lower court to entertain the appeal from the action of the board of supervisors is that the attorneys had no power to accept such service, because, under the statute, the notice of appeal should have been served upon the Van der Burgs. This gives rise to the only question in the case, to wit: Was the acceptance of service by Hatley & Van de Steeg, attorneys, sufficient to confer jurisdiction upon the district court? Numerous authorities are cited by both appellants and appellees, but none of them touch the real question in controversy here.

Our Code provides for many different appeals, in some of which service of notice of appeal shall be the same as that of original notice. Others provide for a notice of appeal, but do not provide the manner of service; while others simply provide a right of appeal, without even providing for notice.

The section of the statute under which this controversy arises is Section 5406, Code of 1927, reading as follows:

"Any applicant may * * * appeal to the district court from the decision of the board of supervisors as to the selection of any or all newspapers so selected by filing in the office of the county auditor a bond for costs * * * and by serving...