Runner v. City of Keokuk

11 Iowa 543 | Iowa | 1861

Baldwin, J.

Under the provisions of the act of the legislature of 1853, chapter 77, page 132, entitled “An Act amendatory to an Act to incorporate the city of Keokuk,” the city council were authorized to 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 determined as other appeals are heard and determined in said court.

The District Court has appellate jurisdiction over causes originating in justices’ and county courts, and over the action of commissioners appointed to assess damages caused by the taking of the right of way to railroad companies. I-Iow, then, are appeals from the action of the commissioners to be determined in the District Court ? The statute says in the same manner as other appeals are there determined. It may be proper to consider how “other appeals” are determined 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 justice of the peace) brings'up a cause for trial upon its merits, and for no other purpose.” Ib. section 2343.

Upon an appeal from the assessment of commissioners of damages sustained 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 that the cause must be determined in the District Court upon its merits that if the proceedings are irregular, so that a plain and adequate remedy is not given by appeal, that the alleged errors may be brought up for review by writ of certiorari. M. & M. Railroad Company v. Rosseau, 8 Iowa 373. We assume, then, that all appeals in the District Court are determined upon their merits. All irregularities are waived by an appeal, and the cause stands for hearing upon its merits, and for no other purpose.

The motion of plaintiffs to dismiss this cause in the District Court, was 'based upon several errors claimed to have 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 as their damages, and the amount each one of the plaintiffs should pay. These questions involve all the merits of the case. The questions presented by the motion to dismiss could have been properly 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, 8 Iowa 148; Craine v. Fulton, 10 Ib. 457; The State ex rel. Hiatt and Harbin v. The City of Keokuk, 9 Ib. 438.

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.