Smiths v. Dubuque County

Isbell, J. (Wright, C. J. dissenting). — Did the District Court err, in dismissing this application? It is apparent that the ground of the dismissal was, that the county court was not authorized to entertain the application, coming at the time and in the manner it did before that court.. It is insisted here, that no question haying been made before the county court, as to its authority to entertain the application, that the objection came too late for the first time in the District Court, and therefore should have been disregarded. Whether this is, or is not so, depends upon the question, whether the county court had or had not jurisdiction oyer the subject matter of the application, at the time and in the manner it came before it. For if it had such jurisdiction, any objection as to the regularity of the proceeding, merely, not made before that court, should be regarded by the District Court as waived. But no failure to object, could confer upon the court, a power to hear and determine a subject matter which it was not authorized to try. In other words, consent could not confer such jurisdiction. The only authority given to the county court to entertain applications for damage, -on account of the laying out of roads, is contained in section 586 of the Code, which provides that within thirty days after the appointment of the day (that is, the day for final action on the matter), all claims for damage -in consequence of the establishment of the road, must be made, if at all.; but where a sufficient excuse for not filing such claim within the time aforesaid, is shown by affidavit, the claim may be considered, if made at any time before final action upon the road ; and the time for such final action may thereupon be postponed to a future day, if [495] necessary. This gives full power to entertain 'sucb application at any time within thirty days, and also, under certain restrictions, after the expiration of thirty days and before final action. But we think it clearly denies that power, after final action establishing the road. Without the authority of this statute, the county court could not entertain an ap* plication of this kind at all. And when it says, where a sufficient excuse for not filing the claim within the time aforesaid, is shown by affidavit, the claim may be considered, if made at any time before final action, it constructively says, that it shall not be considered, if made after the time for final action. If that court may entertain such application three months after the final action establishing the road, we see no reason why it may not three years, or any other time after. Many good reasons, we apprehend, might be given why the time for making such application should be limited to the time of the establishing of the road; but it is unnecessary to dwell upon them, as we do not think the statute ambiguous. But again: the statute requires, if an application is made • after thirty days from the time of fixing upon a time for final action, that an affidavit, showing excuse for not having filed the same within thirty days, shall be filed. No such affidavit was filed in this case. Although we would entertain doubts whether this were essential to jurisdiction, after thirty days, and before final action, yet, we would say, that the want of such affidavit, should have alone induced the county court to refuse to take notice of the application. We conclude that the county court had no jurisdiction to consider the claim, after the time of final action establishing the road* But it claimed, that but fifty-six days intervened between the January and March terms, and the statute providing that a day must be appointed not less than sixty days distant, the establishment of the road was void, and that an establishment of the road not having yet been made, the application is in time. The record shows that the day for final hearing, was fixed at the January term, and that the hearing was had at the March term, but how many [496] days intervened, we are not able to tell by tbe record. But we do not, however, regard this material in tbe adjudication of tbe question before us. If tbe court proceeded irregularly, in establishing tbe road, tbe irregularity should have ' been corrected by a direct proceeding to fhat end, and not on this ajDplication to be let in to claim damage. If the applicants bad moved for damage within tbe sixty days from tbe time of fixing tbe day for final bearing, tbe argument would come with more force. If wé are correct in tbe view we have taken of tbe question of jurisdiction, this taking-precedence of all other questions, it becomes necessary to consider tbe other points made in tbe case. Tbe judgment of tbe District Court is affirmed.