Libbey v. McIntosh

14 N.W. 354, 60 Iowa 329

• Court: Supreme Court of Iowa
• Decided: December 15, 1882
• Status: Published

Opinion

Rothrook, J.

i. notice of feotíve ser-" by appear-?1 I. The order of the board of supervisors establishing the road was made on the ninth day of January, 1880. A proper notice of the appeal was served upon the auditor of the county, as required by section 959 of the Code, and the proof or return of service was in these words:

“Due and legal service of the within notice is admitted on me at Decorah, Iowa. F. Gr. Hale.

Auditor of Winneshiek County, Iowa.

January %7, 18801

The notice of appeal was also served by the sheriff of Howard county upon the four persons first named in the petition for the highway as follows: Upon one of said persons the service was made in Howard county, and upon the other three in Winneshiek county. The only proof of the service of the notice upon the petitioners in Winneshiek county is the return and certificate of the sheriff of Howard county who made the service. The defendants objected to the jurisdiction of the court, and moved to dismiss the appeal, upon the grounds that there was no sufficient service of the notice of appeal, nor proof of service, and that at the time the appeal was taken there was no service whatever of the notice of appeal upon the auditor, and that notices of appeal were not filed in the office of the auditor as required by law.

It is contended that there was no sufficient service of notice upon the petitioners for the road, nor proof thereof, to give the Circuit Court jurisdiction of the appeal. The service, such as it was, was made within twenty days, as provided in section 959 of the Code. But it is said there was no sufficient proof of such service, because the proof consisted of a mere return or certificate of the sheriff of Howard county that he made-the service on part of the defendants in Winneshiek county, and he had no power as such officer to serve the notice outside the limits of Howard county. Whether the certificate of a sheriff of the service of a notice outside of his county is sufficient proof of service, under the present statute, we do not deem it necessary to determine in this case. If the defendants had not appeared in the court below, that might be a material question. But they did appear. It is true, they objected to the jurisdiction of the court, but they recite in their abstract that “the only service of said notice and proof of service on the defendants was as follows:” * * * * . They then recite the facts substantially as above stated. They are then in this position- — they admit that service was made upon them, but deny that it was made by a person authorized to make it, or rather, that his certificate is not sufficient proof of the service. It is true the service of the notice within the twenty days is jurisdictional. We so determined in Spurrier v. Wirtner, 48 Iowa, . But that is a very different question from the one presented in the case at. bar. Here the notices were served within the twenty days, as defendants concede, and the only objection goes to the proof of service. The case of Wiel v. Lowenthal, 10 Id., 575, cited by appellants, is not in point. In that case it was sought to maintain a personal action in Scott county, in this State, against a resident of Illinois, who was served with an original notice in Illinois by the sheriff of Scott county. It was said in the opinion that the service could not be made by the sheriff out of the State; but the question in the case was whether the defendant, a citizen of Illinois, and there served, could be required to defend a personal action in the courts of this State, and it was held that he could not.

2.-: ae- . auditor. II. Next, it is insisted that there was no proper service of the notice of appeal upon the auditor. To this objection it is sufficient to say that an acknowledgment of service was made, it is one of the modes prescribed by the statute. Code, § 2603. The objection that the statute provides that the acknowledgment of service must be signed by the “defendant,” and the auditor is not a defendant, is too technical to require discussion.

3. appeal : sors\strans-” iore\wticebe" glvenIII. It is objected that the transcript was made out and hUd with the clerk of the Circuit Court before the service of the notice of appeal upon the auditor. This is a mere irregularity which in no manner affects the jurisdiction. The judgment of the Circuit Court must be

Affirmed.