St. Mary's Church v. City of Pella

Stevens, J. Tbe city council of tbe city of Pella made an assessment of $2,215.08 upon tbe property owned by appellant as its pro-rata share of tbe cost of improving an abutting street by paving. Appellant caused a proper notice of appeal from tbe action of the city council to tbe district court to be served upon the mayor, who, at tbe same time, fixed tbe appeal bond by an indorsement upon tbe notice. A bond for tbe amount fixed by tbe mayor was executed, with sureties, approved by and filed in tbe office of tbe clerk of tbe district court. 'The bond was not presented to tbe mayor or city clerk for approval, as required by statute. Appellee promptly moved to dismiss tbe appeal upon tbe ground that tbe approval of tbe bond by tbe mayor or clerk is jurisdictional, and that the court did not acquire jurisdiction of tbe appeal without such approval. Tbe motion to dismiss was sustained by tbe court on March 20, 1922. On April 19, 1922, appellant filed a motion to set aside tbe order of tbe court dismissing tbe appeal, and to reinstate the ca'se, upon tbe. ground that tbe motion to dismiss was ruled upon without having been submitted to tbe court, and also setting- up, tbe -claim that tbe bond was signed by a surety previously orally agreed upon between tbe attorney for appellant and tbe mayor of said city, and that tbe failure to have bis approval indorsed upon said notice, or’otherwise entered, was a mere irregularity, which did not affect tbe jurisdiction of tbe court. This motion was supported by the affidavit of appellant’s attorney. A resistance was filed'to the latter motion, upon tbe grounds that tbe order of dismissal was entered at a prior term • of court, after the same bad been regularly and properly submitted to tbe court. Tbe allegations of tbe resistance to the motion to reinstate are supported by the affidavit of tbe judge who ruled upon tbe motion. No resistance was filed to tbe motion to dismiss and no claim appears to have been made, at tbe [207] time of its submission, that the sureties on the bond had been orally agreed upon between appellant’s attorney and the mayor. This failure is excused by counsel upon the ground that the motion was submitted arbitrarily, and without proper notice-or opportunity to meet the same by a proper resistance. The court, in ruling upon the motion to reinstate the case, held that the motion to dismiss had' been regularly submitted. In the course of its ruling, the court stated that it received the brief of appellant ’s attorney on the day the motion was ruled upon,' and that said brief was submitted for the court’s consideration in passing upon the motion. Thé' question presented appears to be settled by our prior decisions. City of Fairfield v. Jefferson County, 168 Iowa 623; Johannsen v. City of Colfax, 161 Iowa 502; Van Meter v. City of Tipton, 178 Iowa 1201; McCord v. City of Cherokee, 180 Iowa 448. Section 839 of the Code provides that: “Any person affected by the levy of any special assessment provided,.for in this chapter may appeal therefrom to the district court, within ten days from the, date of such levy, by serving written notice thereof upon the mayor or clerk, and filing a bond. for costs, to be fixed and approved by either of said officers. ’ ’ The requirement of this statute that the bond be approved by the mayor or clerk is mandatory; and cannot be waived by such officers. City of Fairfield v. Jefferson County, supra. The matters set up in appellant’s motion' to reinstate the appeal and in the affidavit of counsel were not before the court at the time the motion was ruled upon. The claim now made that the mayor agreed to accept fhe surety who subsequently signed the bond was not made at the time of the submission of the motion to dismiss. Whether such arrangement met the requirements of the statute is not now before us. The case is ruled by our prior decisions, and the judgment of the, court below must bé, and is, — Affirmed. ' Arthur,.-C. J.; De Grabe and VermilioN, JJ., concur.