City of Des Moines v. Layman

21 Iowa 153

• Court: Supreme Court of Iowa
• Decided: June 29, 1866
• Status: Published

Opinions

Wright, J.

It is first insisted that the County Court should have dismissed the .proceeding on application, for want of jurisdiction. Under this head, according to the motion, filed in the County Court, it was there claimed that the published notice to the owner was void for want of revenue stamps; that it was not published the length of time required, and generally, that there was no sufficiént notice.

1 pbacappeal Whether there was in fact a stamp affixed, whether, if not, one is required, whether defendant did not waive this and other objections to the service by his appearance, we do not propose to discuss, for the reason that it nowhere appears that the District Court passed upon the sufficiency of the notice or service, and it is the action of that and not the County Court which we are to review on this appeal. It is true defendant assigned these matters as errors in his application to transfer the proceedings to the District Court, but if he relied upon the same, the record fails to show that there was any ruling thereon. Should it ,be said that the language of the final order sufficiently shows a ruling against defendant on these points, then a sufficient answer is that he did not except thereto, and of course thereby lost his right to have the matter reviewed here.

2 high ■ ation: jury. II. It is next objected that the jury assessing the compensation, received no testimony, but assessed the amount alone, from a personal examination of the premises. The record only shows that they did thus examine premises before making the assessment. That it' was their duty to do this under the law. That this was all the testimony upon which they acted, howover, is nowhere stated.

3. pbacstraStals by county ooun. III. It seems that the County Court instructed -the jun-as to their duties in the premises, or as to the rules by which' they are to be guided in making the assessment. For this action of the County Court . _ - . . ° yfc rnay be doubted whether there is any warrant in the law. The objection, however, is not that instructions were given, but that they were erroneous. As the jury, however, found and returned in the very language of the statute that they did not take into consideration any advantage that might result to the owner on account of the proposed street or improvement, the rules given by the court need not be examined. They do not strike us, when considered together, as objectionable. The return, divests this part of the case of every semblance of error, however, and the disposition of it is placed on that ground without setting out the instructions at length.

„ „ £uvj0high•way. juiy. IV. Finally, it is insisted, that defendant was entitled in the District Court to have his damages assessed by a j ury of twelve men: that so much of the statute as leaves it in the discretion of the District Court to grant or refage a new assessment by such a jury, depending upon the inquiry by the court whether right or justice has or has not been done, is in conflict with the provisions of the Constitution, securing to a party a jury trial, and that this jury trial means twelve men, and not a less number, and that in no other method can a party be deprived of life, liberty or property.

The difficulty and importance of the question thus raised is readily appreciated. And yet for this State, it can hardly, as we shall see, be regarded as an open one. Particularly is this true under the facts of this case. For as we understand the record, such a jury was not claimed in the District Court. If not, Bryan v. The State of Iowa, 4 Iowa, 349, is in point and decisive of the question.

But as to the very question made by counsel, it seems to us that the action of the District Court is sustained by Baurose v. The State of Iowa, 1 Iowa, 374, and that following it, the statute under consideration is clearly relieved of any constitutional objection. The doctrine of that case is, that if in the inferior tribunal a party has a trial before the constitutional jury provided for those courts, though of less than twelve men, he cannot, as a matter of right, claim, in the face of the statute, a second trial on the merits in the District Court.

5_on appeal, But if it is claimed that the two cases are not analogous, there is still another view that further relieves this one of difficulty, and is greatly in aid of the construction just state(j) 0f the constitutional provisions upon which appellant relies.

Under the general statute, section 267, the defendant might have appealed from the order or decision of the County Court. On such appeal he would clearly have been entitled to a hearing, upon the merits. Instead of doing this, .however, he adopted the course provided in section 1067. In other words he asked a review of his case under a statute which points out the duty of the District Court in such proceeding, and whatever might have been his other remedies, he must be held to the remedy ’selected. And it is certainly competent, where the right to appeal remains unaffected, for the legislature to provide an additional remedy, and to limit and specify the terms and conditions upon which it may be enjoyed.

The special remedy on appeal in this class of cases may be assimilated to a hearing under the writ of certiorari, and the rights of the parties are not very unlike. And yet, under that writ, the party cannot claim a second hearing or a trial on the merits as a matter of right. Wright v. Phillips, 2 G. Greene, 191; Davis v. Curtis, Id., 575. And see Runner et al. v. City of Keokuk, 11 Iowa, 543.

Affirmed.