Henderson v. Board of Supervisors , 153 Iowa 470 ( 1911 )

Evans, J.

Tbe order and judgment of dismissal appealed from was entered in tbe district court on December 18, 1909. This fact is made to appear in tbe appellant’s abstract. Tbe notice of appeal, however, described the judgment as having been entered on September 18, 1909.

1. Appeal- notíonoFtateoí judgment. Tbe appellee moves to dismiss tbe appeal here for want of jurisdiction on tbe ground that no notice of appeal from tbe judgment of December 18, 1909, was ever served. or(ler was, ^11 fact, entered on September 18, 1009, and tbe specification of such date $16 notice of appeal was a mere error, clerical or otherwise. It was not essential to tbe notice of appeal that any date of tbe judgment should be specified; there being but one judgment in tbe case. Nor will a mere mistake in tbe notice of appeal, specifying the wrong date of tbe judgment, operate to defeat tbe jurisdiction of this court. This bas been tbe repeated bolding. Kennedy v. Rosier, 71 Iowa, 671; Geyer v. Douglass, 85 Iowa, 93; Parker v. Des Moines Ass’n, 108 Iowa, 117; Lynch v. Dugan, 129 Iowa, 243. Appellant bas shown great persistence of error as to tbe date of this judgment. His argument in resistance to tbe motion to dismiss advises us that tbe judgment appealed from was entered July 18, -1909.

2. Same: noticein drainage Tbe ground of dismissal in tlic district court was that the plaintiff had failed to. serve his notice of appeal upim the petitioners for the drainage improvement. The plaintiff did file a proper notice of appeal with the county auditor together with a bond duly approved by the auditor, all in strict accord with the requirements of section 1989-a14 and section 1989-all (Code Supplement). This was a sufficient service. In re Jenison, 145 Iowa, 215; Shaw v. Nelson, 150 Iowa, 559.

It should be said for the trial court that in entering the. order of dismissal it followed the case of Farley v. Hamilton County, 120 N. W. 83. A rehearing was granted in the cited case which had the effect to set aside that opinion. The opinion followed Henderson v. Calhoun County, 129 Iowa, 119. It was overlooked that the statute had been amended since the Henderson case had been decided. That fact was brought to our attention in a petition for rehearing in the Farley case, which was promptly sustained. That case was subsequently decided upon its merits. 144 Iowa, 476. For the reasons indicated, the judgment below must be, and it is, reversed. ■