McNichols v. Wilson

Day, J. i. highway: of superv?-ald sors: appeal. I. The motion to dismiss the appeal and the demurrer to the jurisdiction of the court present same question, and the rulings of the court be considered together. It is claimed the court had no jurisdiction of the appeal, because the order establishing the road, was conditioned upon the payment by the petitioners of the damages awarded. The provisions of the Code, bearing upon the question, are as follows: “Section 946. When the time for final action arrives, the board of supervisors may hear testimony, receive petitions for and remonstrances against the establishment, vacation, or alteration, as the case may be,, of such highway, and may establish, vacate, or alter, or refuse to do so, as in their judgment, founded on the testimony, the public good may require. Said board may increase or diminish the damages allowed by the appraisers, and may make such establishment, vacation, or alteration, conditioned upon the payment, in whole or in part, of the damages awarded or expenses in relation thereto.” . “ Section 947. In the latter case a day shall be fixed for the performance of the condition, which must be before the next session*of the board; and if the same is not performed by the day thus fixed, the board shall, at such session, make some final and unconditional order in the premises.” . “Section 959. Any applicant for damages, claimed to be caused by the establishment of any highway, may appeal from the board of supervisors to the Circuit Court of the county in which the land, lies, but notice of this appeal must be served on the county auditor within twenty days after the decision is made. If the highway has been established on condition that the petitioners therefor pay the damages, such notice eball be served on the four first named in the petition. [390] for the highway, if there are that many who reside in the county.” “ Section 962. The amount of damages the claimant is. entitled to shall be ascertained by said Circuit Court in the same manner as in actions by ordinary proceedings, and the-amount so ascertained shall be entered of record, but no judgment shall be rendered therefor. The amount thus ascertained shall be certified by the clerk to the board of supervisors, who shall, thereafter, proceed as if such amount had been by them allowed the claimant as damages.” From these provisions Ave are satisfied that the appeal in question was not prematurely taken. Section 946 provides that when the time for final action arrives, the board of supervisors may increase or diminish the damages allowed by the appraisers, and may make the establishment of the road conditioned upon the payment of the damages awarded. This is the final action of the board upon the amount of damages.The final and unconditional order spoken of in the next section is to be made only in the event of the failure of the petitioners to pay the damages, upon the payment of Avhichthe establishment of the road may be conditioned. This order can be none- other than that the road be established without the condition of paying the damages, or that, because of the failure to pay the damages awarded, the road be not established. An appeal is alloAved, not from the order establishing the road, but from the decision respecting the damages; and it must be taken Avitliin twenty days from the time the decision is made. Suppose the damages, upon the payment of Avhich the establishment of the road is conditioned,are paid within the time fixed for that purpose, but after twenty days from the conditional establishment of the road. Then no other order Avould be made, for it is only when the condition is not performed by the day fixed that the board is required to make a further, final and unconditional order. In such case, if appellants’ position be correct, there could be no appeal. No appeal would lie from the conditional order named in section 946, and, the condition being performed, the unconditional order named in section 947 Avould never be made. [391] This, it seems to ns, is of itself conclusive against appellants’position. Itis claimed the appeal would oust the jurisdiction, of the board of supervisors and prevent them from making the final unconditional order in a proper case. But this position is not tenable. The appeal merely suspends, for a time, their action. Under section 962, when the amount of damages is determined, it is to be certified to the board of supervisors, and then they may proceed to final action in the premises, as if such amount had been by them allowed the claimant. 2__._. pleading. . II. It is claimed that the court erred in striking from the files the supplemental pleading of the defendants. j>or mosf; part this merely repeats the-matters-presented in the motion and the demurrer already considered. The only thing additional which it presents is the renunciation by defendants of all right to the said road that may have been given to them, by virtue of the order of the board of supervisors, at the same time, however, reserving to themselves any right that may accrue to them by the further action herein, if plaintiff should continue to prosecute his appeal. It is not competent for the defendants thus to depi’ive the plaintiff’ of his right to have his damages legally assessed. They initiated a proceeding which resulted in a conditional order establishing a highway over plaintiff’s premises. The damages awarded are less than plaintiff thinks he will sustain by the establishment of the highway. Notwithstanding the defendants may refuse to pay the damages awarded, the board of supervisors may make an unconditional order establishing the highway. In view of the possibility of such an order, plaintiff is entitled to have his damages assessed. Defendants having put in motion this proceeding, cannot now stop the investigation as to the amount of damages. ¥e need not determine what-might have been the result upon the question of costs if they had -retired from the controversy, and abnegated entirely all-the benefits which might arise from the litigation. But they did not do this. They introduced testimony upon the question of damages, and actually interposed a defense to plain-tiff’s claim. Even in their supplemental pleading they reserve-to themselves all the benefits which may accrue from the action; [392] of tlie court. If the jury had diminished the award of plaintiff’s damages, it cannot now be doubted that defendants would have insisted on their right to pay them, and have the road established. If they will insist upon rights under the appeal they must bear its accompanying burdens. 3. practice: evidence. III. It is claimed that the court erred in determining to allow plaintiff to introduce proof of his title to the premises-after he had rested his case. This is a matter resting very largely in the discretion of the trial court. Section 2779 of the Code provides: “ The party on whom rests the burden of proof in the whole action must first produce his evidence; the adverse party must then produce his evidence. The parties will then be confined to rebutting evidence, unless the court, for good reasons, in furtherance of justice, permit them to offer evidence in their original case.” In this case the plaintiff, in making out his case in chief, introduced a deed to himself, but failed to show title in his grantor.. The court did not err in permitting him to supply this omission, whether it resulted from inadvertence, mistake or ignorance. It would be a reproach to the law if it should deny a party the .right to supply such omissions. See Hubbell & Brother v. Ream, 31 Iowa, 289; Crane v. Ellis, Id., 510; Cannon v. Iowa City, 34 Iowa, 203; Donaldson v. The M. & M. R. R. Co., 18 Iowa, 280. 4 evidence: copy of deed. IY. The court excluded the record of the deeds to Nathaniel McNichols, upon the grouncj that the absence of originals had not been properly accounted for. Upon motion for new trial, the court held that he was in error in excluding this record, and upon this ground á new trial was granted. Defendants assign this action of the court as error. Section 3660 of the Code provides that the record of an instrument in writing, affecting real estate, or a duly authenticated copy thereof, is competent evidence whenever, by the party’s own oath or. otherwise, the original is shown to be lost, or not belonging to the party wishing to use the same, nor within his control. If the instrument is not lost, two things must concur in order to render the record of it admissible. It must be shown not to belong to the party wishing to use the same, and [393] not to be witliin his control. The plaintiff, in this case, testified that he had not the remainder of the original deeds; that he did' not own them; and that they were not under his control, nor within his possession. It would seem that this testimony fully complies with the statute. It is claimed, however, that, inasmuch as these deeds were executed to plaintiff’s grantor, they do, notwithstanding plaintiff’s testimony, belong to him; and that, in cross-examination, plaintiff showed that •the deeds were in the possession of his brother, and hence under his control. These positions are not correct. ■ It does not follow that the deeds belonged to plaintiff simply because ’they were executed to his grantor. They may have contained the description of many other tracts of land still belonging to plaintiff’s grantor, or conveyed to other parties, and plaintiff may neither have owned them, nor been entitled to their •possession. The deed was not within the control of plaintiff simply because it was in the possession of his brother, three miles distant. Plaintiff could not command the delivery of the deed. ITis brother might, upon request, deliver the deed, and, upon the other hand, he might refuse to do so. True, the plaintiff might compel its production by procuring a subpoena dtices tecum, and he might have done the same thing if the deed had been in the possession of any other person within seventy miles. Code, § 3673. This shows the deed to be within the control of the court, but not within the control of plaintiff without resort to the process of the court. The purpose of section 3660, we think, is to enable a party to introduce a record of a deed when the original does not belong to him, and is not within his control, without resort to the process of the court. If such is not its purpose, it is merely declarative of the common law. Our construction is in full harmony with, and is supported by, Williams v. Heath, 22 Iowa, 519. The case of Byington v. Oaks, 33 Iowa, 488, cited and relied upon by appellants, is not in point. The deed in question in that case was one executed to the plaintiff, and the original ■was shown to be in existence, and a part of the files of a case in the Supreme Court. It both belonged to plaintiff and was ■shown to be within his control: The record discloses no error. Affirmed.