52 Iowa 269 | Iowa | 1879
As the facts authorizing service by publication were to be-established ex fiarte, we think it should have been done by-affidavit.
The plaintiffs insist, however, that this is an objection which, no one but Wright could raise. In our opinion the point is not well taken. The statute provides for the apportionment of costs. The establishment of a disputed corner can have no-validity whatever if the court lacks jurisdiction of one of the-parties interested. In our opinion the apj>ellant’s objection should have been sustained.
II. The statute provides for one or more surveyors as com-, missioners. It does not provide for the appointment of a person to take testimony. We think that the commissioners may call to their aid such assistance as they may need. In this case the commissioner called Hammond to his aid instead of .the assistant appointed by the court. We see nothing in this, which would have justified the court in setting aside the report..
It is not the same thing to the party thus prejudiced, to be allowed to introduce his evidence in court. The evidence-should be taken in connection with the survey, because the, survey is to be made in the light of the evidence.
We think that the report should have been rejected.
Reversed..