Spurrier v. Wirtner

Adams, J. The appellant claims — First, that the appeal ■was perfected without notice upon the claimant; and, second, if not, that the defect was cured by the claimant’s appearing in the appellate court and filing a motion to dismiss. 1. highway of damages. The statute points out specifically how an appeal is to be taken in such a case. Code, § 960. Notice of appeal must be served within twenty days upon the county auditor and applicant for damages. The appeal cannot be regarded as perfected until the statute is complied with. 2_._. appearance. The point, however, upon which appellant seems especially to rely is the appellee’s voluntary appearance, and we have presented for our decision the question as to Aether the voluntary appearance of the appellee in the appellate court, for the mere purpose of moving to dismiss, upon the ground that the notice of appeal was not served within the time required by statute, is to be regarded as a waiver of the failure to appeal within the time required. It is evident that the rule in regard to an original notice, whose only office is to bring a defendant into court to answer to a petition duly filed, has no proper application to this case. If the service is not sufficient to require the defendant to answer to the next term, other service can be made. If the defendant voluntarily appears, he has notice, the only question which concerns him being as to the term at which he should be required to answer, and, as to that, the court may make the proper order in view of the circumstances. If an appeal is not taken within the time required by statute, the adjudication becomes absolute. The successful party has a right to so consider it, and govern himself accordingly. Any attempt to disturb that adjudication by appeal, he has a right to [488] resist at the threshold. A want of notice is not waived by appearance where notice is jurisdictional, except where a subsequent notice would have the effect to give jurisdiction. 3 ._. • The appellant claims that a contrary doctrine was held in Robertson v. The Eldora Railroad & Coal Company, 27 Iowa, 245. In that case there was an appeal from a railroad right of way assessment. Notice of appeal was served upon one of the directors of the defendant company. Mr. Justice Beck, who wrote the opinion, thought the service good. The majority, without expressing any opinion upon that point, thought the notice was waived by a voluntary appearance of the company. It does not appear to have been strictly necessary to rule upon the effect of the appearance, and the view of the majority of the court, as indicated in the opinion, can hardly be regarded as having the force of authority. In our opinion the motion to dismiss was properly sustained. Affirmed.