128 Iowa 139 | Iowa | 1905
I. Several preliminary questions are involved on these appeals, which we shall dispose of before going to the mreits.
Neither party was bound to join the other in his appeal. The award was not joint, and either or both could appeal therefrom. The owner had no legal concern in an appeal taken by his tenant from an award in the tenant’s favor, or from a finding that he was not entitled to anything. Nor was the tenant in any way concerned or interested in the owner’s appeal.
III. The notices of appeal were served on the 18th day of March, 1902. Neither of the appellants filed said notices, or any other papers, with the clerk of the district court until about October 20th of that year, at which time Simons filed a transcript of the proceedings before the sheriff and also a complaint. The March term of the district court of Carroll county convened March 31, 1902. At the beginning of that term the parties appeared by counsel, and the cases were entered upon the judge’s calendar. After entry they were by agreement set down for trial on April 15th. Thereafter each was continued by agreement. These agreements were evidenced, first, by memoranda entered by the judge upon the court calendar, and, second, by entries made therefrom by the clerk upon the regular court records in cases which were properly entitled.'
The next term of said district court convened in September, and on the 15th of that month, which was the first day of the term, counsel for the respective parties upon a call of the docket informed the judge that a certain case appearing thereon under the title of Simons against the defendant herein had been disposed of, was dead, and had been put upon the court docket by mistake; that these appealed cases or the Simons appeal should have been put upon the docket instead of the old one, which had been disposed of (it being an equity case, brought by Simons against the railway, an action entirely independent of this appeal), and that the docketing of the old case was intended to cover the condena
The entries of the cases or rather of the 'titles of the cases, on the judge’s calendar, were in the handwriting of the clerk, as also were all the entries upon the court records proper.
The September term convened, we have said, on the 15th day of that month, and on the 19th defendant obtained a transcript of the proceedings before the sheriff, filed it in the district court, paid the docket fee, had the case docketed as a joint appeal as above indicated, and then moved that the appeals be- dismissed because the appellants had not at any time filed either notices of appeal or a transcript of the proceedings before the sheriff’s jury, and had not had the case docketed as provided by law.
After hearing the testimony introduced in support of and in resistance thereto, the motion was overruled. It is agreed that the sheriff made no transcript until it was called for by the defendant’s attorneys, and that at their request he made and filed one on September 19, 1902.
Defendant now stoutly insists that its motion to dismiss or affirm should have been sustained.
The case was not tried until November 24, 1902, and at that time there was not only a transcript on file, but also a
Section 2009 of the Code provides for appeals from assessments by a sheriff’s jury, by the service of a notice in writing upon the adverse party and the sheriff, within thirty days after the assessment has been made, that such an appeal has been taken. The sheriff is thereupon required to file a certified copy of the appraisement, and the court is to try the same as an action by ordinary proceedings.
Section 3660 provides that in appeals from inferior tribunals the appellant shall cause the case to be docketed by noon of the.second day of the term to which the appeal is returnable, and in case of his failure to do so the appellee may procure the case to be docketed, and thereupon will be en-. titled to have the judgment of the court below affirmed, or to have the case set down for hearing on its merits, as he may elect, and the provisions of the Code with reference to appeals from justices’ courts are made applicable “ so far as they may be.”
Section 4559, relating to appeals from justices’ courts, provides that, if the appellant fails to pay the docket fee and have the case docketed by noon of the second day of the term at which the appeal should properly come on for trial, unless time is extended by the court, appellee may do so, and have the judgment below affirmed-, or have the case set down for .trial on its merits, as he may elect. Provision is also made to the effect-that if appellant, before noon of the next day after- an affirmance has been granted, appears and makes a sufficient showing of merits and proper excuse for his default, and pays the clerk the docket fee, the court, in its discretion, may set aside the order of affirmance, and cause the case to stand for trial at -that term, unless appellant asks a continuance, etc.
-These statutory provisions are the basis for defendant’s. claim that the appeal should have been dismissed, or the award affirmed.
There is no statute which expressly requires the filing of a transcript in order to give the district court jurisdiction; and such a document is necessary only for the purpose of furnishing the data for the docketing of the case, or to show the trial court what was in issue in order that it may intelligently submit the issues and render judgment for the proper party. If the case properly gets upon the docket, even in the absence of transcript, and without the payment of the docket fee, appellee cannot have the appeal dismissed or the judgment or award affirmed under the statutes relied upon.
Assuming that the court acquired jurisdiction by the service of notice of appeal, the only object in docketing the case is to prevent delay and to secure a trial in regular order. A transcript is not really required until the case is reached for trial. This has been the uniform holding of this court. Robertson v. R. R., 27 Iowa, 245; Bank v. City, 118 Iowa, 84; City v. Loan Co., 122 Iowa, 629; City v. R. R. Co., 120 Iowa, 259; Vasey v. Parker, 118 Iowa, 615.
This being true, if the case was docketed without the payment of the fee, and without a transcript, the statute has been complied with. ' •
Moreover, at the March term, to which the case was appealed, both parties appeared by counsel, and agreed to a date for the trial of the case, and afterwards consented to a continuance. These appearances were general, and the agreements were carried into the court records, so that they do not rest in parol. The motions to dismiss and affirm were not filed until more than three days after the first day of the second term after the appeals were taken. Before the motions were ruled upon, plaintiff filed an affidavit of merits, made an excuse for his not having filed the transcript, offered to pay the docket fee and to file a transcript, and did actually file a transcript before any ruling was made on the motion to dismiss.
In view of all facts, we think there was a clear waiver on the part of the defendant of a strict compliance on plaintiff’s part with the provisions of the statute with reference to the docketing of the case and the filing of the transcript.
. The case was in the district court. Defendant, by its counsel, recognized it as being properly in that court, and on the judge’s calendar for both the March and the September terms of court. Agreed entries were made in the eases at various times. The transcript was filed long before it was needed for any purpose connected with the trial.
An arrangement existed between plaintiff’s counsel and the clerk of the district court whereby credit was given for docket fees in cases in which they were interested; and, even if there had been no such arrangement or agreement, failure
The court having jurisdiction of the case and of the parties, general appearance on the part of each, and agreements from time to time as to the disposition of the case, which agreements were entered upon the proper records of the court, amounted to the waiver of an entry of the case upon the appearance docket. Robertson v. R. R. Co., 27 Iowa, 245; Squires v. Millett, 31 Iowa, 169; Bacon v. Black, 38 Iowa, 162; Waldron v. Waldron, 15 Sup. Ct. 383, 39 L. Ed. 453; In re Brady, 70 Minn. 437 (73 N. W. Rep. 145.) The following cases involving kindred statutes also give support to our conclusions: Mobile v. Dale, 61 Miss. 206; Hinterminster v. Brady, 70 Minn. 437, (73 N. W. Rep. 145); Waldron v. Waldron, 156 U. S. 361 (15 Sup. Ct. 383, 39 L. Ed. 453); McCombs v. Johnson, 47 Mich. 592 (11 N. W. Rep. 400); Phillips v. Hood, 85 Ill. 450; Foute v. New Orleans, 20 La. Ann. 22.
Assuming that section 45,59 of the Code applies to the case, as defendant contends, the trial court had a discretion in the matter of setting aside such an order as the defendant requested upon proper and timely application therefor. Vested with such discretion, it might, upon a proper showing, refuse, under the latter part of this section to grant it. Such being the case, we should not interfere with this discretion. Stevenson v. Caldwell, 14 Mont. 245. (36 Pac. Rep. 185.)
The jury which tried the case was instructed to look to the evidence for the facts, and we must assume that it tried the same on the evidence adduced. It is manifest that no prejudice resulted from the statemept. Pierce v. Brennan, 88 Minn. 50 (92 N. W. Rep. 509.)
In the cases relied upon by appellant the award of the' jury was introduced in evidence, or otherwise made important by the trial court in such a manner as tó show prejudice. Here counsel stated, when objection was made, that he was simply identifying the case; and for this purpose the trial court held the statement proper. There was no prejudical error here. We are not to' be understood, however, as approving the practice.
A wide latitude is necessarily allowed counsel in examining jurors for this purpose, and must, of necessity, be left to the sound discretion of the trial court. The exact sitúa
No such showing is made in this record as would justify us in reversing the case upon this ground.
The overwhelming weight of authority is to the effect
Indeed, there are bnt two cases which seem to hold to the contrary. They are Wyman v. Company, 13 Metc. 316, which is fully explained and limited in the Presbery Case, supra, and Langdon v. New York (N. Y.), 31 N. E. Rep. 98. But the latter was not a condemnation case. In New York the rule in such cases is in accord with that in other States. See In re Thompson, 14 L. R. A. 52, 127 N. Y. 463, 28 N. E. Rep. 389.
There are many reasons which might be advanced in support of this almost, if not quite, universal rule. In the first place, such sales are almost always in the nature of a compromise. The landowner, on the one side, may force a sale; and the railway company, on the other, must have the land, even though it costs more than its value. Again, the circumstances and surroundings are necessarily dissimilar,, and the amount paid is not only the value of the land actually taken, but also the damages done to the entire tract, depending upon the exigencies of the location of the right of way, the number of acres in the estate, and other facts peculiar to the particular case. All incidental damages are included, and these, of course, should not be taken into account in fixing the acreage value in the market. Evidence as to damages paid in one case would certainly not be admissible in order to determine the damages done in another; and yet this' is what appellee is contending for here when the matter -is¡
It is contended by appellee that the trial court cured this error in an instruction in which it told the jury that plaintiff could not recover for any inconvenience which affected the public generally, as well as the owner, and that being obliged to drive.under the overhead crossing was such an inconvenience. We doubt if this sufficiently cured the error in the admission of the testimony; for it did not cover all the matters to which the witnesses had referred — for instance, the frightening of teams. Enough has been said to indicate that upon a retrial this testimony should not be received.
The instruction should not have been given. Thereunder a jury might very well have felt justified in giving more weight to the testimony of a farmer as to values, simply because of his occupation or residence, than to that of another witness not of that occupation, although the latter may have had more or better knowledge of the subject than the former. It is always dangerous to give such instructions, and that in this case it may have been exceedingly prejudicial to the defendant is not open to debate.
Nor the errors pointed out, the judgment must be and it is reversed.