Cedar Rapids, Iowa Falls & N. W. R'y Co. v. Whelan

21 N.W. 141, 64 Iowa 694

• Court: Supreme Court of Iowa
• Decided: October 24, 1884
• Status: Published

Opinion

Servers J.

I. The writ of certiorari may be granted whenever specially authorized by law, and especially in all cases when- an inferior tribunal, board, or officer, exercising judicial functions, is alleged to have exceeded his jurisdiction, or is otherwise acting illegally, when, in the judgment of the superior court, there is no other plain, speedy and adequate remedy. Code, § 3216.

From the assessment of damages made by a sheriff’s jury for right of way purposes, either party may appeal. Code, § 1254. This is a plain, speedy and adequate remedy, when the complaint is that insufficient damages were not assessed. As it is not claimed the land appropriated could not be taken for right of way purposes, and the only substantial complaint is that sufficient damages were not assessed, we are of the opinion that certiorari will not lie, for it appears that proper and sufficient notice was given of the proposed appropriation, and tine day upon which it (the assessment) would be made, as provided by statute. Jurisdiction was, therefore, obtained, and it makes no difference if thereafter error occurred; or, if the sheriff and jury acted illegally in any respect, the plain, speedy and adequate remedy by appeal is amply sufficient to enable any party to obtain substantial justice; that is, obtain a proper assessment of damages by a constitutional jury on a trial in the circuit court.

Conceding that the sheriff and jury combined, or either singly, was possessed of judicial powers, the fact that the assessment was made on a day subsequent to that fixed in the notice cannot have the effect to oust the jurisdiction which had been lawfully invoked. At most, it was an illegal assessment, which could be readily corrected on appeal. ■

II. It is claimed that the plaintiffs were deprived of an appeal by the fraud of the sheriff. ¥e have great doubts whether any fraud was committed, but, conceding that there was, and thereby the plaintiffs were deprived of such right, it is quite evident that certiorari is not the proper remedy.

Akkirmed.