207 N.W. 793 | Iowa | 1926
Lead Opinion
I. Keosauqua Way was paved, and in the schedule of special assessments for the cost was a proposed levy against two lots belonging to the plaintiff. The district method of assessment was not adopted. A parallel street intervened 1. MUNICIPAL between plaintiff's lots and Keosauqua Way. The CORPORA- trial court annulled the assessment as in TIONS: violation of Section 6012, Code of 1924, public limiting such assessment to one half of the improve- privately owned property between the street ments: void improved and the next street. The defendant's assessment. contention is that the objections filed with the city council did not raise this question. We think, however, that, as the district plan was not adopted, the council was wholly without authority or jurisdiction to 2. MUNICIPAL make the assessment. The assessment upon CORPORA- plaintiff's lots, therefore, is absolutely void, TION'S: and should be annulled though no objections public whatever were filed with the city council; and improve- it may be annulled on appeal, as well as by ments: void independent suit in equity. In re Appeal of
assessment: McLain,
II. It is objected that the bond given on the appeal to the district court did not have upon it the clerk's indorsement of *1235
approval, and therefore was not approved, and the district court had no jurisdiction. One of the steps necessary 3. MUNICIPAL to the perfecting of an appeal is the filing of CORPORA- "an appeal bond, approved by the clerk of said TIONS: court * * *" Section 6064, Code of 1924. Our public attention has not been called to any statute improve- which, in the case of appeal bonds, specifically ments: requires an indorsement or other record of assessment: approval to be made, although such record would appeal: be the the better practice. State v. Briggs, 68 informal Iowa 416, 422. Official bonds are specifically approval of required to be indorsed, in case of approval. bond. Section 1074, Code of 1924. The statute provides in the case of pleadings that they shall not be considered as filed until memorandum is made in the appearance docket. This is held to be mandatory. Nickson v. Blair,
We are of the opinion that an indorsement of approval was not indispensable, and that the absence of it did not deprive the court of jurisdiction. Hanaw v. Bailey,
The judgment is — Affirmed.
EVANS, FAVILLE, and ALBERT, JJ., concur.
De GRAFF, C.J., and STEVENS, J., dissent as to Division II. *1236
Dissenting Opinion
I dissent to the conclusion expressed in Division II. I view the approval of an appeal bond by the clerk of the district court as an affirmative act, and that the statute contemplates that the approval shall be indorsed upon said bond. In the instant case, the approval is found in the testimony of the clerk to the effect that, if a bond is not approved, it is not accepted or stamped "filed." It was stamped "filed" in this instance, and it follows, from his statement, that it must have been approved. I cannot accept this logic as meeting the provision of the statute in perfecting an appeal, that there shall be filed "an appeal bond approved by the clerk" of the district court.
The filing of the bond and its approval are jurisdictional requirements. A filing is not per se, in my judgment, an approval, and the statute does not contemplate an approval dehors the record.
STEVENS, J., joins in the dissent.
