68 Iowa 130 | Iowa | 1885
I. The plaintiff filed a claim before the board of supervisors for damages to the amount of $25, arising by reason of the location of the road upon his land. The claim was rejected, and thereupon plaintiff appealed to the circuit court, serving notice of appeal only upon the supervisors. ■ The defendant moved to dismiss the appeal on the grounds that none of the petitioners were served with
II. Code, § 959, provides that an applicant for damages in a road case may appeal to the circuit court by serving notice on the county auditor. If the highway- has been established upon condition that the petitioners pay the damage, the notice must be served upon the four persons first named in the petition. Section 961 provides that the claimant for damages shall be plaintiff, and the petitioners shall be defendants, except that, when damages have been ordered to be paid out of the county treasury, the county shall be defendant. In our opinion, the county ought to be regarded as a defendant in the action, for the reason that the notice of
III. We think the petitioners ought not to be served with notice of the appeal unless they are required to pay damages. Section 959 plainly so provides. Whether the petitioners should be parties under section 961 is nota question certified in the case. We answer the question affirmatively.
■•The judgment of the circuit court is
Affirmed.