Goffinet v. Soper, 95 P. 571

Goffinet v. Soper

95 P. 571 | Kan. | 1908

The opinion of the court was delivered by

Smith, J.:

Defendant in error Laura Soper, for herself and her minor wards, notified the county surveyor of Marion county to survey certain lands therein. The surveyor notified the other landowners who might be affected by the survey, and at the time stated in the notice duly made the survey and made his report. The plaintiff in error in due time filed his notice in writing with the county surveyor of his intention to appeal therefrom, and filed his appeal bond, with approved surety, and the county surveyor certified the appeal to the clerk of the district court and also filed the requisite papers and reports.

The appeal'was docketed in the district court under the title “F. Goffnet v. Laura Soper et al.” Thereupon the defendants in error filed their motion to dismiss the appeal, on the ground that the appeal bond was in*556sufficient to effect an appeal and to give the court jurisdiction of the action for the reason that the surveyor’s report showed that persons not named in the bond were affected by the survey and that the appeal bond should run to all such as well as to Laura Soper and her wards. On the hearing of the motion the court allowed the same and dismissed the appeal. To reverse this order the case was brought here.

The only question in the case is whether the bond is void. If it was only defective or informal it was subject to correction, the plaintiff in error having made timely application to the court for leave to file an amended bond. The call for the survey was for the purpose only of establishing the northeast comer of a certain section of land and the quarter-section corner on the east side of the section. The petitioners for the survey (defendants in error) owned the north half of the section, and Goffinet (plaintiff in error) owned the south half thereof. It thus appears that Goffinet and the petitioners for the survey are perhaps most directly interested in the establishment of these corners, although the owners of adjoining lands might also be affected. If the survey itself was not an adversary proceeding, it became such upon an appeal’s being taken. The statute implies that notice to the surveyor of the intention to appeal is notice to all parties that were notified of the survey, and no question is raised but that all the parties interested in the survey were notified thereof. In a sense, a notice of the surveyor to the parties interested in the survey gives such jurisdiction over them as to bind them by the results of the survey; and it is a generally recognized rule that when jurisdiction has once been established over parties to a proceeding or in an action no new notice is required of the subsequent steps therein until the matter in controversy is finally determined. Each party in interest, over whom jurisdiction is acquired, must at his peril take notice of each successive step leading to the final determination.

*557We incline to the opinion that all the parties adverse to Goffinet are protected by the appeal bond which was given as fully as they would have been had each been named therein. However this may be, the bond was at least sufficient to give the court jurisdiction of the case. If the bond was insufficient to protect any party or parties in interest the court had jurisdiction on their application to require the plaintiff in error to make a sufficient bond to protect them. It does not, at least, lie in the mouth of Laura Soper or her wards to say that she and they were not protected by the bond, or to deny the jurisdiction of the court because others had not been properly brought into court, if such were the fact.

The order of the court dismissing the case is reversed and the case is remanded, with instructions to reinstate the same and to proceed in accordance with the views herein expressed.