McKinnon v. Cedar Rapids & Iowa City Railway & Light Co.

Supreme Court of Iowa

McKinnon v. Cedar Rapids & Iowa City Railway & Light Co.

102 N.W. 138, 126 Iowa 426

DecidedJanuary 17, 1905

StatusPublished

This text of 102 N.W. 138 (McKinnon v. Cedar Rapids & Iowa City Railway & Light Co.) 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.

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McKinnon v. Cedar Rapids & Iowa City Railway & Light Co., 102 N.W. 138, 126 Iowa 426 (iowa 1905).

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Opinion

McClaiN, J.—

In a condemnation proceeding instituted by tbe railroad company to have damages assessed for a right of way over plaintiff’s land an award was made, and tbe company served notice of appeal, and bad the appeal docketed, as provided by Code, section 2009. Thereafter the plaintiff (that is tbe landowner, who, by tbe provisions of tbe sections just cited, is to be treated as plaintiff) also served notice of appeal, and caused a transcript of tbe proceedings to be filed with tbe clerk of tbe district court, but did not pay any filing fee. The railroad company thereupon caused an appeal by tbe landowner to be docketed,. paying tbe filing fee, and asked tbe district court by motion to affirm the assessment of the sheriff’s jury, under tbe provisions of Code, section 3660, for failure of tbe plaintiff to prosecute bis appeal by having the same docketed. The trial court overruled this motion, and ordered the so-called appeal of-plaintiff to be consolidated with that taken by tbe railrohd company from tbe same assessment. Tbe company then dismissed its appeal in tbe district court and now complains of the action of that [428]*428court in overruling the motion to dismiss the plaintiff’s appeal.

It is apparent that the case before us presents nothing but a question of costs. No appeal by the landowner to the district court was necessary, after the company had already appealed, in order that the landowner might get larger damages than those awarded by the sheriff’s jury should he be found entitled to them on the trial of the company’s appeal. See Code, section 2009, 2011. Perhaps he was entitled to serve a notice on his own account, and have the sheriff transmit any portion of the finding of the sheriff’s jury not already transmitted in response to the company’s notice. ' However that may be., plaintiff has not objected, so far as appears, to the dismissal of the appeal by the company, madg after the order of consolidation. We cannot see what possible advantage would accrue to the company from a reversal of the ruling by which the district court refused to dismiss the landowner’s appeal, if one was taken, which has already been, in effect, dismissed by the dismissal of the company’s appeal, with which it has been consolidated. We do not try mere abstract or hypothetical cases.— Affirmed.

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McClaiN, J.—

In a condemnation proceeding instituted by tbe railroad company to have damages assessed for a right of way over plaintiff’s land an award was made, and tbe company served notice of appeal, and bad the appeal docketed, as provided by Code, section 2009. Thereafter the plaintiff (that is tbe landowner, who, by tbe provisions of tbe sections just cited, is to be treated as plaintiff) also served notice of appeal, and caused a transcript of tbe proceedings to be filed with tbe clerk of tbe district court, but did not pay any filing fee. The railroad company thereupon caused an appeal by tbe landowner to be docketed,. paying tbe filing fee, and asked tbe district court by motion to affirm the assessment of the sheriff’s jury, under tbe provisions of Code, section 3660, for failure of tbe plaintiff to prosecute bis appeal by having the same docketed. The trial court overruled this motion, and ordered the so-called appeal of-plaintiff to be consolidated with that taken by tbe railrohd company from tbe same assessment. Tbe company then dismissed its appeal in tbe district court and now complains of the action of that [428]*428court in overruling the motion to dismiss the plaintiff’s appeal.

It is apparent that the case before us presents nothing but a question of costs. No appeal by the landowner to the district court was necessary, after the company had already appealed, in order that the landowner might get larger damages than those awarded by the sheriff’s jury should he be found entitled to them on the trial of the company’s appeal. See Code, section 2009, 2011. Perhaps he was entitled to serve a notice on his own account, and have the sheriff transmit any portion of the finding of the sheriff’s jury not already transmitted in response to the company’s notice. ' However that may be., plaintiff has not objected, so far as appears, to the dismissal of the appeal by the company, madg after the order of consolidation. We cannot see what possible advantage would accrue to the company from a reversal of the ruling by which the district court refused to dismiss the landowner’s appeal, if one was taken, which has already been, in effect, dismissed by the dismissal of the company’s appeal, with which it has been consolidated. We do not try mere abstract or hypothetical cases.— Affirmed.

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102 N.W. 138, 126 Iowa 426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckinnon-v-cedar-rapids-iowa-city-railway-light-co-iowa-1905.