Hagemeyer v. Board of County Commissioners

71 Minn. 42 | Minn. | 1898

COLLINS, J.

From an order of the respondent board of county commissioners made subsequent to the amendment (Laws 1895, c. 54) to G. S. 1894, § 1860, by which order said board altered and changed in part the location of a certain county road where it ran over and across appellants’ premises, they attempted to appeal to the district court as authorized in the amendatory act. Their appeal here is from an order of the district court dismissing their appeal upon the ground of want of jurisdiction. It is urged that for several reasons the order should be affirmed, but in the district court the motion was based upon three grounds only, and of these we shall consider but one.

Under the amendment of 1895 it was required of the appellant, among other things, that a copy of the notice of appeal be filed in the office of the town clerk of each town in which the highway proposed to be laid out, altered or discontinued may be situated. A compliance with this provision of the law was essential to the appeal, which is purely statutory. It must be taken as the statute directs. This rule has often been announced by this court. Schwede v. Town, 35 Minn. 468, 29 N. W. 72, and cases cited. The filing of this copy was a jurisdictional requisite of an effectual appeal, and without this the district court had no jurisdiction over the subject-matter of the controversy. If a copy of the notice had actually been filed as required by the statute, jurisdiction would have been acquired, although no proof of such filing had been made. The jurisdictional thing was the fact of filing, and not the proof of it, so that when the question was raised by the motion in the court below the appellants could there have furnished the proof. Town v. Orton, 37 Minn. 445, 35 N. W. 264. This they made no attempt to do, nor has it been claimed that the fact existed.

On the oral argument, counsel for appellants contended that, as it clearly appeared from their complaint that all that part of the highway which was altered by the order appealed from was within the limits of a village organized under the general laws, the statute requiring a copy of the notice of appeal to be filed in the office of the clerk of each town in which the highway was situated did not apply.

Assuming that this complaint might properly be considered upon the hearing of the motion, and also that the copy need not be filed in each of the towns through which the particular highway runs, but simply in the town or towns in which, according to the petition, an alteration is proposed to be made, — and as to these two points we express no opinion, — the complaint failed to allege that all of the proposed alteration was within the limits of the village, although there was an allegation that all of the alteration, as actually made, was within such limits. Under any construction of the statute, a copy of the notice would have to be filed in the clerk’s office for each town wherein an alteration was proposed by the petition; for if on appeal the district court should reverse the order, it would reverse that portion which denied the petition to alter the highway within the town limits, as well as that part which granted the petition to alter it within the village limits.

But counsel for appellants insists that because the county attorney admitted service of a notice of trial and of a copy of the complaint, which was prepared and served some twenty days prior to the opening of the term of court, and also because at the preliminary call of the calendar, the county attorney being present, the case was set down for trial by a jury, all objections were waived, and there was conferred upon the district court full jurisdiction to proceed. But it is evident that the jurisdictional question here involved relates to the subject-matter of the controversy, and not merely to the person, as is argued by appellants’ counsel. The motion to dismiss was therefore seasonably and properly made.

Order affirmed.