Nesselrode v. Parish

59 Iowa 570

• Court: Supreme Court of Iowa
• Decided: October 20, 1882
• Status: Published

Opinion

Seevers, Ch. J.

i. prachce: tocSbiish jurisdiction. -I. Tbe petition states tbe plaintiff is tbe owner of tbe N. W. \ of Sec. 14, T. 79, R; 31, and tbat tbe northwest corner of said land is in dispute and lost or destroyed. Including tbe defendant Parish thirty-five persons were made defendants, and it was stated tbat they were tbe only land owners tbat would be “affected by tbe proceedings sought herein.” Certain named defendants were stated to be non-residents, and certain others minors. '

Tbe defendant Parish alone answered tbe petition, and denied tbe corner was destroyed or lost. The court appointed O. E. Allen, Esq. a commissioner to make a survey, establish and locate said corner, and make a report of his doings. The commissioner established the corner as claimed by the defendant Parish, and so reported. The report was confirmed. Objections were made thereto by the plaintiff, among which was that the “court erred in appointing said commissioner.” Under this objection it is insisted the court had no jurisdiction or power to appoint a commissioner, because the record fails to show any notice was served on the defendants other than Parish, and there was no appearance for any of them except him. It is said Nesselrode v. Parrish, 52 Iowa, 269, was between the same parties, and in relation to the same subject matter, as in the present case. In that case the defendant, Parish, appeared and resisted the appointment of a commissioner because the proper foundation had not been laid for service on Wright by publication. It was held that the mere statement in an unverified petition of the non-residence of Wright was not sufficient to establish such fact. When the cause was remanded another commissioner was appointed.

It is stated in the petition that certain persons named as defendants are the “only” persons that would be affected by tiie proceedings. There is no evidence other than this statement in the petition tending to show the interest of said persons, or that they were necessary parties. We do not think the statement aforesaid is sufficient evidence of the alleged fact. The case comes within the reason of the rule established in the case just cited. The court, it must be conceded in the state of the record, had jurisdiction, and the power to appoint a commissioner as between the plaintiff and defendant Parrish, unless it appeared there were other persons who were necessary parties.

2. beai.esTATE: tmo corner. ' II. It is assigned as error that the court erred in not setting aside the report of the commissioner. Such an assignment is not sufficiently specific. But as no such objection is made, we will consider briefly whether the evidence is sufficient to sustain the report of the commissioner. The rule is regarded as well established that the true corner is where the United States surveyors in fact established it, whether such location is right or wrong as may be shown by a subsequent survey. The preponderance of the evidence, we think, was in favor of the disputed corner having been so established at the place claimed by the defendant. As the commissioner so found, we cannot disturb the finding. This disposition of the case makes it unnecessary to determine the motion filed by appellee.

Affirmed.