Hahn v. C., O. & St. J. R.

Adams, J.

1 ad quod Sgiitof way: appeal. I. It is claimed by the appellee that the plaintiffs never took an appeal from the assessment of the sheriff’s jury. It is contended that it was not suffor the plaintiff to give notice of an appeal t0 defendant; but that it should have been given also to the sheriff, upon whom the law imposes the duty of filing and preserving such report as may be made to him by his jury. The appellee assumes that the report of the sheriff’s jury must be filed in the appellate court, as constituting the record of the case without which the court cannot proceed to try it. Rut such we think is not the law. The statute not only does not require that the report of the sheriff’s jury should be filed in court, but we think it would be improper to file it there, especially as a part of the record upon which the case is to be there tried.

*335 The statute requires that the sheriff shall file and preserve the report, by which we understand that he is made its permanent custodian; and the same, with proof of payment, com stitutes the railroad company’s evidence that it has acquired a right of way.

Besides, the assessment is to be made de novo and without any reference to the assessment which has been made. It is true that the court does not take jurisdiction except by appeal, and that it should appear that there was an assessment from which an appeal can be taken. But as the statute does not give the land-owner control over the report, nor provide for the filing of either the original or a copy in court, the notice of appeal will be deemed presumptive evidence that an assessment has been made.

The report is not necessary to show the land through which the right of way is sought. That may and should be shown in the notice of appeal, as without it there could be no identification of the assessment from which the appeal is taken. With a proper notice of appeal the court has all that is necessary as a record. Evidence may be necessary, to be sure, for the identification of the part taken for the right of way, but such identification need not appear in the court records. The sheriff’s records, in connection with the records of the company, constituted before appeal sufficient muniments of title to the right of way, and as the appeal can change nothing but the assessment, such rec >rds are sufficient afterwards.

II. The appellant claims that the case was certified from Johnson county as if Louisa Hahn was sole plaintiff. The abstract shows a transcript from Johnson county of the papers there on file. In the notice of appeal, which must govern, the case is properly entitled William Hahn and Louisa Hahn vs. The Chicago, Omaha & St. Joseph Eailroad Oo. The defendant in the papers filed by it persisted in misnaming the case, but defendant can of course be allowed to derive no advantage from that fact.

Affirmed.