Mazzoli v. City of Des Moines , 245 Iowa 571 ( 1954 )

Hats, J.

— Appeal from order overruling defendant’s special appearance attacking the jurisdiction of the trial court to entertain plaintiffs’ appeal under section 472.18, Code of 1950. Rule 332, R. C. P., was complied with.

The City of Des Moines, as authorized by chapter 390, Code of 1950, instituted condemnation proceedings against a leasehold interest in realty located at 410 Locust Street in said city. As required by sections 390.3 and 403.9 (unless otherwise stated, all references are to the 1950 Code), the procedure followed was that set forth in chapter 472.

Section 472.17 states that the commissioners’ appraisement is final unless appealed from. Section 472.18 provides: “Any party interested may, within thirty days after the assessment is made, appeal therefrom to the district court, by giving the adverse party, his agent or attorney, and the sheriff, written notice that such appeal has been taken.” Section 472.19 requires .that the notice of appeal be served in the same manner as an original notice.

July 16, 1953, the commissioners made the appraisement of damages. August 14, 1953, appellees delivered to the sheriff’s office a notice of appeal addressed to the “City of Des Moines, Iowa, and Tom Reilly, Sheriff of Polk County.” The return of service states the same was served on the sheriff on August 14, 1953, and on the City of Des Moines on August 18, 1953. The principal question raised by the special appearance, and presented by this appeal, is whether the appeal was taken within the thirty-day period authorized by section 472.18.

I. All parties concede that the appellant was not actually given notice within the thirty days. Appellees, however, assert that the “thirty days provision” is a limitation on the remedy; that the giving of notice is the commencement of the action; and that, under rule 49, R. C. P., the same was commenced in time. We find no merit in this claim.

While generally speaking the jurisdiction of the district court is general and original, section 604.1, it is in certain matters appellate, section 604.2. Section 472.1 states: “The procedure for the condemnation of private property * '* *, unless and except as otherwise provided by law, shall be in accordance with the provisions of this chapter.” Section 472.3 provides: “Such proceedings shall be instituted by a written application filed with the sheriff * * It is clear that exclusive jurisdiction is placed in the sheriff and commissioners and that only by the process of appeal does the district court obtain jurisdiction over both the subject matter and the parties. Its jurisdiction is appellate only.

II. Assuming that the thirty-day period is a limitation on the remedy by the appeal, and that the giving of notice of appeal is the commencement of an action, in that by such notice the first court proceedings are commenced, an examination of our statutes and decisions shows that it is not such a limitation or action as is contemplated by rule 49, R. C. P.

Rule 48, R. C. P., states that a. civil action is commenced by serving the defendant with an original notice. Rule 49 states: “For the purpose of determining whether an action has been commenced within the time allowed by statutes for limitation of actions, whether the limitation inheres in the statute creating the remedy or not, the delivery of the original notice to the sheriff of the county * * * shall also be deemed a commencement of the action.” To commence an action under rule 48 one must serve the adverse party with a notice which conforms with the requirements of rule 50, R. C. P. It will be noted that rule 49, R. C. P., speaks of “the delivery of the original notice”, and in 1 Cook, Rules of Civil Procedure, Author’s note to rule 49, it is said: “It is believed that the notice here required must be one which contains all the statements required in Rule 50.” This we think is the clear intent of the rule, and we so construe it.

Section 472.18 merely requires that written notice be given that an appeal has been taken. In O’Neal v. State, 214 Iowa 977, 243 N.W. 601, the question involved was the type of notice required by section 472.18. At page 980 of 214 Iowa, page 603 of 243 N.W., we said:

“A notice of. appeal is in no sense an original notice. The statute does not in such case contemplate the commencement of an original action in the district court. The statute requires nothing more than that a written notice shall be served * * * * =» While the purpose of the respective notices is to bring the cause on for trial in the district court, the proceedings are essentially different.”

There can be no other logical conclusion than rule 49 is not applicable to the type of action here contemplated. It is our conclusion and we so hold that the notice of appeal was not given within the time required by section 472.18 and that the district court did not obtain jurisdiction over the subject matter of the .proceedings. The special appearance should have been sustained.

While appellant also questions the service had upon the sheriff, and the appellees contend appellant waived error, if any, in overruling the special appearance by filing a subsequent motion, these matters are moot in view of our pronouncements herein.

For the reasons above-stated the ruling of the trial court is reversed and the cause remanded' with instruction to enter judgment in accordance herewith. — Reversed and remanded.

Garfield, Wennerstrtjm, Mulroney, and Thompson, JJ., concur. Smith, J., Bliss, C. J., and Oliver and Larson, JJ., dissent.