88 Iowa 689 | Iowa | 1893
The indictment in this case charges the defendant with wrongfully and willfully obstructing and incumbering a certain highway known as the “PetersonNo. 2 Road,” in Webster county, Iowa. To this indictment the defendant pleaded not guilty. It appears that in 1880 the defendant built its railway track across this highway. In so doing it placed it about two feet above the surface of the ground.
It is claimed that, even if the highway was a legal one, the evidence does not show that it was obstructed by the defendant. "We need not set out the evidence. It is conclusive as to the obstruction of the highway, and it is without conflict.
In the final order made by the board of supervisors establishing the road, the following appears: “And it appearing to the board that all the prerequisites of the law have been complied with,” etc., there is nothing else in the record which can be said to refer to notice, and the question is, is this recital' sufficient to show that notice was given, or to raise a presumption to that effect which will be good, unless overcome by other proper evidence. A brief review of the cases touching this question of notice may aid us in determining the sufficiency of the statement in the record to confer jurisdiction. The cases of Snyder v. Foster, 77 Iowa, 641, and C., R. I. & P. R’y Co. v. Ellithorpe, 78 Iowa, 418, go to the extent of holding that such notice is necessary to confer jurisdiction, and in the latter case it is held that notice will not be presumed from the fact of the establishment alone. In Richman v. Board, 70 Iowa, 632, it is held that jurisdictional facts can not be presumed. In State v. Berry, 12 Iowa, 58, there was. an'entire absence of evidence as to the giving of notice, and the court held that in such a case, when it appeared that the court never acquired jurisdiction, no presumption obtained in its favor; that it must appear in some manner that notice was given. In State v. Anderson, 39 Iowa, 275, there was no evidence of notice, nor did it appear that the board found that notice had been given, or that they passed upon the question, and it was held jurisdiction would not he presumed. In McBurney v. Graves, 66 Iowa, 317, it is said: “Where the tribunal (board) determines that the preliminary steps essential to give it jurisdiction have been taken, and makes that determination a matter of record, the statute raises a presumption in favor of the correctness of the determination.” In State v. Waterman, 79 Iowa, 365, it is held that the fact that an inferior tribu
Bardsley v. Hines, 33 Iowa, 158, was a case of the publication of an original notice of the commencement of a suit. The decree recited that due and legal notice had been given, and stated the manner of giving notice. It appeared that the order for the notice was given by the clerk when the statute required it to be given by the court or judge, and it was held the publication so made was made without proper authority, and not good. The statute under which that case was decided required the fact, that the defendant could not be found, to be made to appear by affidavit to the satisfaction of the court or judge, and it was held the decree was not sufficiently specific in that respect. In State v. Prine, 25 Iowa, 231, the court found that notice had been given, and the finding of that fact was entered of
Y. Other irregularities are complained of, which appear from the exhibits attached to the showing made by the defendant for a new* trial on the ground of newly discovered evidence. These were not in evidence, and can not be further considered.
"We discover no error, and the' judgment below is aeetkmed.