200 N.W. 833 | Minn. | 1924
1. The subject matter of this controversy has been before the court twice. In State v. District Court,
By L. 1919, p. 620, c. 471, § 11, relating to expenses in a drainage proceeding and authorizing their allowance by the district court, it is provided:
"And in all cases where a judicial ditch proceeding has, for any reason, been dismissed by the court, all fees and expenses connected therewith shall be audited, allowed and ordered paid in like manner."
There is further provision for an appeal to the district court, with a right to a jury trial, and the procedural provisions of G.S. 1913, § 5534, so far as applicable, are adopted.
The ditch proceeding was dismissed on August 31, 1916. The court assumed to retain jurisdiction to audit the expenses. In view of the holding that the provision of G.S. 1913, § 5571, for auditing was unconstitutional the reservation does not seem important.
The statute is not objectionable as retrospective legislation. Conceding the existing liability of the county, it was within the constitutional power of the legislature to provide that the court having, or which had had, jurisdiction of the proceedings, should proceed, upon notice, to the ascertainment and fixing of the liability. The statute affects the remedy and not a substantive property right. Dunnell, Minn. Dig. §§ 1617, 1651, 12 C.J. 1088; Tompkins v. Forrestal,
2. Nor is the statute objectionable on constitutional grounds because it does not provide for a jury trial in the first instance. The guaranty of the Constitution is satisfied if at some reasonable time, as here on appeal, the right to a jury trial is preserved. *69
Flour City F. T. Co. v. Young,
3. The procedure not being subject to constitutional objection, we are brought to the inquiry whether liability rested upon the county for the services of an engineer. The proceeding was instituted on May 5, 1914. The controlling statute is G.S. 1913, § 5571. In State v. District Court,
4. The engineer's claim is not barred by the statute of limitations. Notice was given on March 7, 1921. The claimant was appointed engineer on June 10, 1914. He made his report on July 14, 1915, at which time he filed his bill for services. The services were continuous in nature. The last service was within the 6-year period.
5. The county contends that the claimant extended the drainage system beyond the intended limits, and thus increased the amount of his demand to an unreasonable amount. We have sympathy with this contention. We do not, however, impose our judgment against the conclusion of the trial judge, who was in much better position than we are to ascertain the fact. The evidence sustains its finding. We find no errors in the rulings upon the amount of recovery calling for a new trial. *70
6. The judgment from which the appeal is taken was entered by the court upon audit had pursuant to L. 1919, p. 620, c. 471, § 11. Section 11 provides for an appeal within 30 days to the district court with the right to a jury trial. The question suggests itself whether an aggrieved party can have the audit reviewed except upon an appeal to the district court in the manner provided by statute; in other words, whether an appeal can bring the correctness of the audit directly to this court as in form is done in this case. The question was not raised on the argument. The time for appeal to the district court has passed. In view of our conclusion on the merits of the case the result to the defendant is the same whatever the holding upon the method of review of the audit. Whether an appeal can be taken from the result of the audit in the first instance, without an appeal to the district court, is not decided.
Judgment affirmed.