196 Iowa 329 | Iowa | 1923
The case of Lincoln v. Moore, 196 Iowa 152, was submitted immediately after the instant case. The Lincoln case was first decided. As pointed out in that case, the two cases are closely related. While some of the questions in the instant case were argued in the Lincoln case, the determination of the first case ■was not made to depend upon the question relied upon by appellants in the instant case. The more important question in the Lincoln case was as to whether the district had ever been established, and it was held that it had been. This being so, a cleaning out-and repair of the old ditch in the district authorized by the board was and is permitted. The determination of the instant case depends, to a considerable'extent, upon the holding in the Lincoln case, because, after repairs on the old ditch have been authorized, if appellants in the instant case succeed in reversing the district court and the board of supervisors, a re-. location of the proposed new ditch would be authorized, thus making two ditches for the same lands. In any event, the situation might be greatly complicated. This situation has not been referred to in argument by either side. Our troubles have not been lessened by the situation thus ' presented. Appellants in this case can have no other purpose in their appeal to the district court and to this court but the establishment or relocation of the new ditch. The record of both proceedings is set out fully in the Lincoln case, -and it will be unnecessary to again set
The argument of appellant in both cases, so far as the action of the board in refusing appellants’ petition is concerned, proceeds upon the theory that they were asking for the establishment of a new district; but the petition filed by appellants in the district court, after their appeal from the action of the board, is more upon the theory that they were asking the board to change the route of the ditch in the same district. The petition is quite long, so that a summary thereof only will be stated.
The petition recites the filing of the petition with the county auditor, asking the board to alter as well as change the present route of the water as now carried by the Pony Creek Drainage District, and change the route as now established. The petition to the board and all proceedings of the board are referred to in the petition, which also states that on the trial plaintiffs will offer and use the transcript of papers now on file; that, on January 20, 1922, their petition before the board was brought on for hearing; that the board, ignoring the favorable report of the engineer, and without appointing appraisers, dismissed the said petition, depriving the petitioners of their right in asking that the route in said Pony Creek district be changed from where it now is, which new proposed route is more favorable and more likely to carry water, whén completed, than the old route, as now located. The old ditch is described in detail, and the claim is made that it was insufficient and partly filled up; that, if the ditch was changed, as called for by plaintiffs’ petition, a ditch could be constructed that would relieve the trouble now existing; that plaintiffs are aggrieved by the decision of the board in turning down their petition and denying to them the privilege due them under the drainage law. Wherefore, they pray as before set out.
The resolution of the board from which this appeal is taken is set out practically in full in the Lincoln case, where we interpreted the meaning of the board in passing the resolution. A part of it will now be referred to. It recites that said petition in substance asks for a relocation of the old Pony Creek Ditch, and that the purpose of the same is to drain the lands now sought to be drained by the now existing ditch; that there would
1. Appellants say that the only question involved in this appeal is whether the order of the board of supervisors in refusing to establish a drainage district is ever reviewable by the courts. Counsel for appellant now contend, contrary to their position in the Lincoln case, that the action of the board is not wholly legislative, and that they are entitled to a review by the courts. We take it that what appellants are really trying to do is to change the location of the ditch in the district, and incidentally to establish the district which they claimed in the other case had never been legally established. Strictly speaking, then, the application of appellants to the board of supervisors was not an action to establish a district, nor was the action of the board a refusal to so establish a district. As we said in the Lincoln ease, it is not a fair interpretation of the order of the board of supervisors to say that they found that drainage was of no benefit. What they did hold was that, since there was one ditch in the district, it was unnecessary to'have another, or relocate the ditch, and lose all the money which had been expended on the old ditch; and they refused the petition of appellants on that ground.
Another matter should be here referred to' which we think is important, as bearing on this question; and that is that there was pending at the same time, and in the same matter, an application by other property owners, asking that the board repair and clean out the old ditch. If it be the thought of appellants that this is a matter for the court, then we have to say that it would be surprising if any court would hold that the board of supervisors did not do the' proper thing. We shall see later that we have never held that all the acts of the board in drainage projects are legislative, or that in no case will an appeal lie from such portions of the actions of the board as are judicial. In some of the cases, we have said, in effect, that, even
2. There is another matter which we think important in the determination of this appeal. This is in further answer to the contention of appellants that they were entitled to a review in the district court. We are inclined to think that, under the record as made herein, the matjer was reviewed by the district court, whether appellants were entitled to it or not. As shown, appellants filed a petition in the district’ court after the appeal from the action of the board. We have held that it is good practice, on appeals from inferior tribunals, to file a petition, stating the claims of the appellant. It may be conceded that the proper way to test the sufficiency of a petition is by demurrer. However, a motion, under some circumstances, may- be considered as equivalent to a demurrer. The motion in the instant case struck at the entire petition, and not parts thereof. The motion was not to dismiss the appeal, but to declare that appellants were not entitled to any relief, although it was not worded in just that language. As said, the motion struck at the entire petition and the entire proceedings. Appellants made no objection in the court below, nor do they in this court, that demurrer was the proper remedy, rather than a motion to dismiss the case. Indeed, the matter is not suggested in argument by either appellants or appellees. In Rhoadabeck v. Blair Town Lot & Land Co., 62 Iowa 368, a motion to strike all paragraphs of the petition was sustained. We said:
“The effect of the ruling of the district court in sustaining the motion was, therefore, the same as if the paper attacking the petition had been a demurrer, upon the ground that the
In Wisconsin Lbr. Co. v. Greene & W. Tel. Co., 127 Iowa 350, 354, it was conceded that a motion to strike is an improper method of testing the sufficiency of matters pleaded in defense, but we said:
“This court has never been very insistent upon technical accuracy in the use of names given to such pleadings as are here involved. ”
See, also, Frazer v. Andrews, 134 Iowa 621, 629; Seiffert & Wiese Lbr. Co. v. Hartwell, 94 Iowa 576, 579; 19 Ruling Case Law 671, 672. A motion to dismiss may have the same effect as a demurrer. The objection that the complaipt does not state facts to constitute a cause of action may be taken by motion to dismiss. So of the objection that the court has no jurisdiction of the subject-matter of the action. For the purposes of the motion, the allegations of the complaint are to be deemed true, as on demurrer.' It will be so treated on appeal, if plaintiff excepts to a dismissal, instead of amending. Sheridan v. Jackson, 72 N. Y. 170; Hibernia Sav. & Loan Society v. Thornton, 117 Cal. 481 (49 Pac. 573); Merchants Nat. Bank v. Eckels, 191 Pa. 372 (43 Atl. 245).
Thus, the trial court had before it the resolution of the board of supervisors, stating the reasons for refusing to grant the petition, and all the facts in regard to the two ditches in the one district, and may properly have concluded that, under all the circumstances, the court would not be justified in reversing the finding, of the board. Suppose there had been a trial in the district court, and all the facts shown which were shown in the pleadings and proceedings, and the trial court had then affirmed the action of the board of supervisors, or dismissed the plaintiffs’ case, then, under our cases, we would be slow to reverse the district court.
Under the record, and for all the reasons stated, we are of-