City of St. Joseph v. Halsey

BROADDUS, P. J. This is an appeal by the city of St. Joseph from an order of the circuit court of Buchanan county, setting aside the report of commissioners appointed to assess the damages and.benefits to arise from the propssed grading of Pacific street, and appointing a new commission to assess such damages and benefits. The city, on' September 22, 1908, passed a special ordinance providing for the grading of Pacific street to the established grade. A certified copy of the ordinance was filed in the circuit court of the county, and a commission appointed to assess the damages and benefits that would arise from the proposed grading. The commission having acted made its report to the court. The respondent, one of the owners of property abutting on said street, and who would be affected by such contemplated grading, filed exceptions to the report of the commissioners. Upon hearing evidence was introduced in support of her motion and the report of the commissioners was set aside and a new commission appointed. It was from this order the city appealed as stated. It was shown by the evidence that in 1893 the city passed a general ordinance No. 435, establishing grades on said street. The grade established in front of respondent’s property by this ordinance was about [361] four feet above the natural surface of the street; that thereafter relying upon such grade so 'established respondent improved her property by erecting thereon a ten-room house. The street was never brought to the grade established by said ordinance 435, but on April 14, 1908, the city passed general ordinance No. 1092, abolishing the prior grades and establishing new grades. The new grade established in front of plaintiff’s property was about on a level with the natural surface of the street. It is suggested by respondent that the appeal should be dismissed because there has been no final judgment rendered. The order appealed from was only interlocutory,- and from which there is no appeal provided for in the code. Section 2038, Reveised Statutes 1909, which governs the right of appeal does not provide for appeals from interlocutory orders of this kind. The questions which the appellant seeks to have reviewed can be adjudicated on appeal from whatever final judgment may be rendered in the cause. Appeal dismissed. All concur.