Borland v. Mississippi & Missouri Railroad

"Woodward, J. Upon the appeal to the district court, the defendants were entitled to a re-hearing upon the question of damages, and they7 might have caused them to be re-assessed by a jury of twelve men. By their appeal, they were in court for all substantial purposes ; and if they did not appear and urge their right to a new assessment, they could not afterward object the want of notice. The appeal took the cause up on its merits; and it enabled them, in effect, to set right the consequences of any wrong doing, • or partiality of the commissioners, or the sheriff. It became immaterial, whether they had notice. [150] This is the view heretofore taken upon this question, •where an appeal has been resorted to, and it follows that the appellant cannot object the want of notice. This view also supercedes the question made by the plaintiff, whether the notice need to appear in the record, or whether it may be shown otherwise, upon the defendant objecting the want of it. There is no doubt but that either party is entitled to 'notice of the calling upon the commissioners to act, but we need not stop to determine those other questions connected with it, since, in the present case, the appeal placed the defendant in the same position he would have been in, if he had been served. The judgment is affirmed.