163 Iowa 25 | Iowa | 1913
I. Certain lands owned by appellant in Boone county were regularly subjected to assessments for benefits resulting from the establishing of a drainage system under the statutory provisions. Being dissatisfied with the assessment, he served notice of appeal, and filed his appeal bond,
The ruling of the trial court was made prior to the decision of this court in Elwood v. Board of Supervisors, 156 Iowa, 407. In that case it was held that the appeal was perfected by the filing of the notice and giving bond; that, upon such being done, the auditor must make and file a transcript, and, upon the filing fee being paid, the clerk must docket the ease, and that on or before the first day of the next term of court the petition should be filed. We then held that the filing of the petition was not jurisdictional; that the provision as to the dismissal of the petition was in the nature of a penalty; and that a strict construction of the statute should be made, to avoid the imposition of the penalty, so long as the court should find that there had not been a want of diligence and vigilance by the appellant in the protection of his rights. That case holds that, “while the right to a dismissal is prima facie absolute, the power and discretion remain to refuse dismissal, and to direct the cause to be placed on the calendar for trial.” Without further quoting from that decision it is enough to say that it must be held decisive of appellant’s right to be heard in the lower court on his appeal, unless it shall be determined that by his acts appellant had been guilty of such delay as would be held to amount to a waiver of his right of appeal.
The ruling and judgment of the trial court dismissing the appeal is Reversed.