Under the provisions of the act of the legislature of 1853, chapter 77, page 132, entitled “An Act amendatory to an Act to incorpоrate the city of Keokuk,” the city council were authorized tо extend the streets of said city and to appoint commissioners to assess damages caused by such extension, and charge the same to the property of persons benefited thereby. The section which authorized this proceeding, provides that any person aggrieved thereby may appeal from such assessment or apportionment to the District Court, upon filing proper bonds, &c. And it is further provided that such appeal shall be heard and dеtermined as other appeals are heard and determined in said court.
The District Court has appellate jurisdiction over сauses originating in justices’ and county courts, and over the actiоn of commissioners appointed to assess damages caused by the taking of the right of way to railroad companies. I-Iow, thеn, are appeals from the action of the commissioners to be determined in the District Court ? The statute says in the same manner аs other appeals are there determined. It may be prоper to consider how “other appeals” are detеrmined in the District Court. “An appeal is allowed from all decrees and decisions of the county court on the merits of any matter affecting the rights or interests of individuals as distinguished from the public, including an intermediate order . involving the merits and necessarily affecting the decree or decision.” Code of 1851, section 131. “An appeal (from a justiсe of the peace) brings'up a cause for trial upon its mеrits, and for no other purpose.” Ib. section 2343.
Upon an appeal from the assessment of commissioners of damages sustainеd by the right of way to railroads, it has been held by this court that the appeal is from the assessment of damages by the commissioners, and thаt the cause must be determined in the District Court upon its merits
The motion of plaintiffs to dismiss this causе in the District Court, was 'based upon several errors claimed to hаve existed in the proceedings of the commissioners. As the appeal was from the assessment, the only questions to be determined in the District Court, were as to the amount Hiatt & Harbin should be entitled to аs their damages, and the amount each one of the plaintiffs shоuld pay. These questions involve all the merits of the case. The questions presented by the motion to dismiss could have been proрerly raised and reviewed upon a writ of certiorari, but not upon appeal. See M. & M. R. R. Company v. Rosseau, supra; Borland v. M. & M. R. R. Company,
The questions presented by the motion of plaintiffs to dismiss, were passed upon to a certain extent in the case of The State ex rel. Hiatt and Harbin, supra, and there held adversely to thepositions assumed by the appellees. We do not propose again to refer to them specially, as we regard them as waived by the appeal. The order of the District Court dismissing the appeal and setting aside the action of the commissioners, is reversed.