Nesselroad v. Parrish

Adams, J. i BouxDAiir juriHiaJon.' I. This proceeding was instituted under chapter 8 of the Laws of the Fifteenth General Assembly. That. statute provides that if any one of the adjacent owners is unknown, and does not reside in the-county, notice may be served upon him by publication. It is not provided that any evidence shall be filed either by affidavit, sworn petition, or otherwise, that the person served by publication is unknown' and á non-resident of the county. In this, case none was filed unless the unsworn statement in the petition be considered as evidence, and we do not think it can be.. The record, therefore, does not show the fact which makes271 service by publication valid. The question, then, is as to. whether it is necessary that the record should show such fact. In our opinion it is. Legal service was necessary to give the court jurisdiction. We think that the court should have refused to act until the record was such as to show that it had jurisdiction. As the facts authorizing service by publication were to be-established ex fiarte, we think it should have been done by-affidavit. The plaintiffs insist, however, that this is an objection which, no one but Wright could raise. In our opinion the point is not well taken. The statute provides for the apportionment of costs. The establishment of a disputed corner can have no-validity whatever if the court lacks jurisdiction of one of the-parties interested. In our opinion the apj>ellant’s objection should have been sustained. II. The statute provides for one or more surveyors as com-, missioners. It does not provide for the appointment of a person to take testimony. We think that the commissioners may call to their aid such assistance as they may need. In this case the commissioner called Hammond to his aid instead of .the assistant appointed by the court. We see nothing in this, which would have justified the court in setting aside the report.. 2. --: com-evidence.’ III. The appellant complains that he was not notified of' -the time of making the survey. The statute does not provide-for notification to the parties interested. Notice,. therefore, could not be considered jurisdictional.. But the statute contemplates that the commissioner will take-evidence. If it is made to appear that material evidence was omitted to the prejudice of a party who was not notified, we-think it would constitute good ground for rejecting the report. It is not the same thing to the party thus prejudiced, to be allowed to introduce his evidence in court. The evidence-should be taken in connection with the survey, because the, survey is to be made in the light of the evidence. We think that the report should have been rejected. Reversed..