Bourjaily v. Johnson County

167 N.W.2d 630, 1969 Iowa Sup. LEXIS 813
CourtSupreme Court of Iowa
DecidedMay 6, 1969
Docket53348
StatusPublished
Cited by27 cases

This text of 167 N.W.2d 630 (Bourjaily v. Johnson County) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bourjaily v. Johnson County, 167 N.W.2d 630, 1969 Iowa Sup. LEXIS 813 (iowa 1969).

Opinion

MOORE, Justice.

Plaintiffs, Vance and Bettina Bourjaily, husband and wife, with our permission have appealed from the trial court’s order sustaining defendant’s motion to strike all of division I of their petition.

Plaintiffs’ petition alleges they are the contract vendees of two separate parcels of land in Johnson County, one of which is also encumbered by a mortgage held by Farmers Savings Bank of Kalona. In its brief and in oral argument defendant admits these facts.

On April 9, 1968 defendant served on the sheriff its application for condemnation of a portion of each of these parcels. Therein plaintiffs were listed as the record owners of the described property and it was stated: “There are no liens or encumbrances of any kind shown of record.” The same day plaintiffs only were served with a notice of assessment for condemnation and a commission of appraisers was appointed to view the premises and fix damages. April 26 the duly sworn commissioners visited the land and subsequently awarded damages to plaintiffs of $1133.75.

May 24 plaintiffs filed their notice of appeal from the report of the condemnation proceedings and also filed their petition which was set out in two divisions. Division I alleged the names of the contract vendors of each tract of land involved and the book and page number where each real estate contract was recorded in the office of the Johnson County Recorder. It also alleged the Farmers Savings Bank of Kalona, Iowa, held a mortgage on one tract and set out the book and page number where it was recorded. It also alleged: “Certain of the property sought to be condemned by the defendant is not owned by or in possession of plaintiffs * * Finally it alleged the proceedings were void for failure to comply with the necessary requirements for condemnation proceedings and prayed for a decree voiding the same. Division II alleged insufficiency of damages and sought an amount of $10,000.

*632 July 12 defendant filed its motion to strike all of division I on the grounds (1) plaintiffs had no standing to raise the issue of noncompliance with the statutory requirements and (2) that such noncompliance, if found, is not a matter of jurisdiction and not fatal to the condemnation action.

September 4 the trial court made a calendar entry sustaining defendant’s motion. The court, other than generally sustaining the motion gave no reasons or grounds for its ruling.

Thereafter two members of this court granted plaintiffs permission to bring this appeal challenging the correctness of the trial court’s ruling on the motion. All further condemnation proceedings affecting plaintiffs’ land have been stayed pending the outcome of this appeal.

I. The initial questions sought to be resolved are whether the trial court committed reversible error in failing to rule on defendant’s motion in accordance with rule 118, Rules of Civil Procedure, and in striking division I of the petition. Underlying these preliminary questions is the ultimate issue of whether the condemnation proceedings instituted against plaintiffs are void because the county failed to name and serve the record lienholders of the property sought to be condemned as required by sections 472.3 and 472.9, Code, 1966.

Rule 118, R.C.P., provides: “Specific rulings required. A motion, or other matter involving separate grounds or parts, shall be disposed of by separate ruling on each and not sustained generally.”

The trial court sustained defendant’s motion to strike division I of plaintiffs’ petition without specifying the reasons for its ruling. Consequently we, and the parties, are unaware of the ground or grounds upon which the motion was sustained. Rule 118 was drawn to avert the needless and time consuming process of arguing and examining each and every ground of the motion, even those which the trial court considered to be devoid of merit. See 1 Cook, Iowa Rules of Civil Procedure, Revised Edition, page 7S2.

We have as yet refrained from predicating reversible error solely on the basis of the trial court’s disregard of rule 118, at least in the absence of some compelling cause to hold otherwise. Nevertheless, we have repeatedly stated we much prefer specific rulings on each and every ground of a motion. DeWaay v. Muhr, Iowa, 160 N.W.2d 454, 456; Jones v. Iowa State Highway Commission, Iowa, 157 N.W.2d 86, 92; Tice v. Wilmington Chemical Corp., 259 Iowa 27, 33, 141 N.W.2d 616, 620; 143 N.W.2d 86; Gorman v. Adams, 259 Iowa 75, 79, 143 N.W.2d 648, 650; Hull v. Bishop-Stoddard Cafeteria, 238 Iowa 650, 666, 667, 26 N.W.2d 429, 439.

Meaningful compliance with rule 118 greatly facilitates appellate procedure in that counsel are apprised of the precise grounds of the adverse ruling and are thereby enabled to properly and narrowly limit their arguments on appeal to the actual grounds responsible for the court’s ruling. The ever increasing volume of appeals renders it imperative the rule be followed.

II. Plaintiffs argue defendant chose the wrong procedural device in attacking division I of the petition with a motion to strike. They assert that although such motion is the proper method to attack improper and unnecessary material in the pleadings it is unavailable for purposes of challenging an entire division of a petition. See rule 113, R.C.P. This argument has merit, however, the record convinces us the trial court actually treated the motion as one to dismiss. We will therefore treat the court’s order as one sustaining a motion to dismiss which is a proper method of attacking an entire division of a petition. See rule 104(b), R.C.P. The trial court erred in sustaining the motion.

III. As material here Code section -472.-3 provides: “Application for condemna *633 tion. Such proceedings shall be instituted by a written application filed with the sheriff of the county in which the land sought to be condemned is located. Said application shall set forth: * * *

“3. The names of all record owners of the different tracts of land sought to be condemned, or otherwise affected by such proceedings, and of all record holders of liens and encumbrances on such lands; also the place of residence of all such persons so far as known to the applicant. * * * >>

As material here section 472.9 provides: “Form of notice. Said notice shall be in substantially the following form, with such changes therein as will render it applicable to the party giving and receiving the notice, and to the particular case pending, to wit:

“ ‘To . (here name each person whose land is to be taken or affected and each record lienholder or encumbrancer thereof) and all other persons, companies, or corporations having any interest in or owning any of the following described real estate :***.’ ”

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Bluebook (online)
167 N.W.2d 630, 1969 Iowa Sup. LEXIS 813, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bourjaily-v-johnson-county-iowa-1969.