Jamison v. Burlington & Western R'y Co.

69 Iowa 670 | Iowa | 1886

Seevers, J.

The award or assessment of damages returned to the sheriff by the jury states: “And it appearing that John R. Jamison had been duly notified of the proceedings herein, and of the time and place where we would view the said premises and assess said damages, we did, on the sixth day of July, 1883, at one o’clock p. m., inspect and view the following premises, * * * and assess the damages the owners will sustain,” etc. Such appraisement was filed in the sheriff’s office on the ninth day of July, 1883. The appeal, if taken at all, was taken by the service of the requisite notice on the sixth day of August, 1883. It is provided by statute that either party may appeal from “such assessment * * * within thirty days after the assessment is made, by giving the adverse party, or, if such ‘party is the corporation, its agent or attorney, and the sheriff, notice in writing that such appeal has been taken.” Code, § 1254.

1. baildemiiaiion"' rigiuoi way: appeal: when taken. 2._.___. awardtevi-' daviuif juror, I. It is insisted by the appellant that the time stated in the return made to the sheriff is conclusive evidenee of the time when the assessment was .made, and that the time for taking the appeal then begins to run. We think the time for taking the appeal begins ° A A ° to run from the time tlie assessment is in fact made, reduced to writing, and is made public, or in some legitimate manner comes to the knowledge of the parties interested. Whether such time precedes the filing or placing the assessment in the hands of the sheriff we have no occasion to determine. Upon the hearing of the motion certain affidavits of some of the jurors and others were introduced in evidence, which were uncontradicted, and which fully warranted the court in finding that the jury viewed the premises on the sixth day of July, but that they in fact did not make the assessment until the ninth, the day it was filed in the sheriff’s office. To the introduction of these affidavits in evidence, counsel for the defendant objected on the ground that the verdict or assessment was thereby impeached, and therefore the affidavits of the jurors were incompetent. The rule is that the evidence of jurors may be introduced to sustain a verdict, but not

to impeach it but affidavits of jurors may be received, for the purpose of avoiding a verdict, to show anymatter which does uot-essentially inhere in the verdict. Wright v. Illinois & M. Tel. Co., 20 Iowa, 195. The assessment in question, however,'was not impeached in any manner by showing when it was actually made; nor did such date inhere in and form a material part of the assessment. It was equally good, whether made on the sixth or ninth day of July, and we think the affidavits of jurors were admissible for the purpose of showing when it was actually made.

s_.___ pean on ap" ageiiSserved' II. The notice of appeal was duly served on the sheriff and A.- F. Tracy, “civil engineer and agent for said conE pany,” as appears from the return of tbe sheriff. The statute requires the notice to he served on the “agent or attorney” of the company. The defendant insists that Mr. Tracy was not its agent. It is not material to inquire, under the foregoing return, on whom was the burden of proof, or whether, by appearing and moving to dismiss the appeal, the defective service, conceding it to be such, was waived. It will be observed that the statute uses the general term “agent,” and the kind and character of the agency is in no manner specified. From the evidence introduced below it is quite clear that Mr. Tracy was the agent of the defendant for some purposes. lie was the engineer in charge of the surveys and location of the road. The defendant had an office in the county, and Mr. Tracy was in charge of it. He transacted business connected with procuring the right of way, and we think the notice of appeal could be properly served on him, and that the defendant is bound thereby, for the reason that he was an agent of the defendant; and this is all the statute requires. The ruling of the circuit court is

AeeirmedI