Buckmiller v. Creston, Winterset & Des Moines Ry. Co.

Gaynor, J.

On the 26th day of October, 1912, the plaintiff filed in the district court of Adair county his notice of appeal from the award of commissioners, appointed by the sheriff of said county, to assess the damages for the taking of the right of way by the defendant; the plaintiff being the owner of the premises through whose land the right of way passed, and the one affected by the assessment. "When the cause reached the district court, defendant objected to the jurisdiction of the court, on the ground that the notice of the appeal was insufficient to give the court jurisdiction of the defendant, and insufficient to give the court a right to hear and determine the questions raised by the appeal.

*504

1. Condemnation appeau ^notice • tfós’í6 jurómetlon.

*503 It appears, from the record, that the objection goes to the return of service, or the evidence of service. The notice *504 was addressed to this defendant, and to II. J. Harbour, as sheriff. Harbour was the sheriff of the ty, and the one who appointed the commissioners who made the assessment. Harbour served the notice of appeal, and his return of the service is signed, “II. J. Harbour, Sheriff of Adair County, ’ ’ and recites that service was made on the defendant on the 25th day of October, 1912.

On the 9th day of November, 1912, this defendant filed its motion to dismiss the appeal, on the ground that the court had no jurisdiction; that there was no sufficient service of notice to give jurisdiction. Thereupon Harbour amended his return to the notice. The amended return showed that he served the notice as an individual, and not as sheriff, and signed and swore to it as an individual, and not as sheriff of the county. This was done on the 14th day of November, 1912, his return being as follows:

State of Iowa, Adair County — ss.: I, Harry J. Harbour, being first duly sworn, on oath state that the foregoing notice of appeal came into my hands for service on the 25th day of October, 1912, and I served the same on the Crestón, Winterset & Des Moines Railroad Company by- offering to read the same to R. Brown, president thereof, which he waived, and delivering to him a true copy of the same and that I served the same on said company by offering to read the same to R. Brown, attorney for said company, which he waived, and delivering to him a true copy of the same.. All done this 25th day of October, 1912, at Crestón, Union county, Iowa. [Signed] II. J. Harbour.

Subscribed and sworn to before me this 14th day of November, A. D. 1912, by Harry J. Harbour.

Thereafter, and on the 26th day of November, 1912, the court made its ruling on the motion to dismiss, and the same was by the court overruled. On the 24th day of January, 1913, the defendant filed a motion for a supplemental ruling *505 on the motion theretofore filed; the motion for the supplemental ruling being as follows:

Comes now the defendant the Crestón, Winterset & Des Moines Railroad Company and renews its motion to dismiss plaintiff’s appeal heretofore filed in this cause, and states the following reasons therefor:

(1) That in its motion heretofore filed it stated, First, that no legal notice of appeal was served on the defendant railroad company within the time required by the statutes of Iutfa, and, second, that the time within which notice of appeal may be served had expired, and, third, that the court had no jurisdiction. All of which appears from defendant’s motion on file.

(2) That in the first paragraph of the original motion this defendant contended against, not only the form of the notice and the time of the pretended service, but also that no service in law was in truth or in fact made, as shown by the returns; the same having been served by the sheriff beyond the jurisdiction of his county.

(3) That the court, in rendering its opinion on said motion, does not pass upon the legality of the notice, in that it does not determine whether or not the service as shown by the record, and more particularly the returns thereof, constitutes a legal and valid service in law.

Therefore this defendant renews its motion, and asks that the court render a supplemental opinion passing upon the issues presented in paragraph third above.

This motion was also by the court overruled, and, from these rulings, the defendant appeals, and assigns error.

Section 2009 of the Code provides in cases of this kind:

Either party may appeal from such assessment to the district court, within thirty days after the assessment is made, by giving the adverse party, or, if such party is a corporation, its agent or attorney, and the sheriff notice in writing that such appeal has been taken. The sheriff shall, thereupon, file a certified copy of so much of the appraisement as applies to the part appealed from, and the court shall try the same as an ordinary proceeding. The landowner shall be plaintiff, and the corporation, defendant.

*506 In a controversy of this sort, there are but two parties interested in the result — the party who seeks to condemn, and the party whose property is taken by the condemnation proceedings. The party whose property is taken has the right of appeal under the statute above set out, and his appeal is taken by serving notice upon the adverse party, or, if such adverse party is a corporation, upon its agent or attorney. Notice must also be served upon the sheriff by whom the commissioners were selected. The notice must be in writing. The sheriff, in no sense, is a party to, or interested in, the appeal. He can be in no way affected by the appeal. The notice to be served on him is required, presumably, for the reason that he is, under the law, required to file a certified copy of so much of the appraisement as applies to the part appealed from.

In this ease, however, the notice was addressed to the defendant in this suit, and also to the sheriff. The notice was served on the defendant. The sheriff accepted service for himself, as sheriff. The service was made in due time, and is sufficient to give the court jurisdiction, if the proof of service was sufficient under the law to make the fact of service appear.

2. Same: notice ofappeal: service : return: amendment: jurisdiction. The notice as first returned was signed by Harbour, as sheriff, and was not sworn to. It was upon this record that the first motion to dismiss was made, and it was urged in that motion, not only that he was a party to the suit, and therefore incompetent to make serv- . . ice, or proof of service, but also that, as sheriff he had no authority under the law, to serve a notice out of his own county. But, before.the ruling was made upon the motion, this return was amended to show that he served the notice in his individual capacity, and not as sheriff, and this return was sworn to.

Section 3516 provides: “Notice may be served by any person not a party to the action.”

Section 3524 provides: “If service is made within the state, the truth of the return is proven by the signature of *507 the sheriff or his deputy, and the court shall take judicial notice thereof. If made ... by one not such officer within the state, the return must be proven by the affidavit of the person making the same.”

There is no question but that Harbour, although sheriff in fact, had a right to serve the notice as an individual, and that such service would be legal. The proof of the service, however, must be made by his affidavit. His signature alone does not prove the service. Any individual may make service of original notice anywhere within the state; but the fact of service is proven by his affidavit, attached to the service, reciting the fact of service. It is the fact of service that gives jurisdiction. The proof establishes the fact of service. Proof, made in the way the statute requires, is sufficient to give the court jurisdiction, for it is sufficient proof of actual service.

There is no question that Harbour had a right to amend the return so as to state the fact as to how the service was made. Indeed, he could have been required to do so, if a question arose as to the correctness of the return. As stated before, it is the fact of service that gives jurisdiction. The evidence of the service may be insufficient; but, if the notice was actually served, as required by law, and by one authorized, the return may be corrected, if it can be done so truthfully, to show the fact of service, and if, after amended, it appears that the person was properly served with notice sufficient to bring him within the jurisdiction of the court, the notice is sufficient to give that jurisdiction, and the court may thereupon assume jurisdiction of the party and the subject-matter of the suit, because then the evidence before the court makes it appear that the defendant, by proper process, has been brought within, and is within, and under, the jurisdiction of the court. See Brown v. Petrie, 86 Iowa, 581 ; Hoyt v. Brown, 153 Iowa, 324 .

*508

3. same notice of appeal :‘ partiese-apw>ju“ce.

*507 The fact that Harbour was named in the notice, with the defendant, does not make him a party to the suit, disqualify *508 ing him from making the service of the notice. He nowhere appears as a party to the suit except in,the n°tiee- He is not, in fact, a necessary or a proper party. He is not affected by or interested in the controversy, or affected in the least by a determination of the controversy. The defendant was, in no way, prejudiced by the insertion of his name in the notice served upon the defendant, nor by the fact that he accepted service of the same notice. Service on him was necessary because the statute requires it; but the service is not for the purpose of making him a party to the controversy. The defendant is no more prejudiced by this manner of service than it would have been had a separate notice been served on Harbour. As said by the trial court in ruling upon the motion: “It might possibly be the better practice to give the notice to the corporation, and a separate notice to the sheriff; but the fact that both parties were notified by the same written instrument ought not to be construed as making the sheriff a defendant in the suit appealed.” See Waltmeyer v. Wisconsin, Iowa Nebraska Ry. Co., 64 Iowa, 688 .

That the sheriff who conducts proceedings for the condemnation of a right of way is not a party to the proceedings, see Chicago, R., I. F. & N. W. Ry. Co. v. Chicago, M. & St. P. Ry. Co., 60 Iowa, 35 .

We see no error in the ruling of the court, and the case is —Affirmed.

Ladd, C. J., and Deemer and Withrow, JJ., concur.