Andrews v. Town of Marion

Gilfillan, C. J. This case came into the district court by appeal, tty this plaintiff, from the order of the supervisors of the town of Marion, laying out a road over the land of plaintiff, and .assessing her damages therefor under Laws 1873, c. 5. A motion was made by the town, in the district court, to dismiss the appeal oil the ground that the notice of appeal merely stated that the party had appealed, and thereby appealed, from the order, (describing it,) to the district couit, without stating the other acts necessary to be done to make an appeal, to wit, the filing of an application and bond as prescribed by the act. The motion w;.-.$ denied correctly. Notice that a party has appealed is, unless the statute requires further specification, in effect, notice that the party has done whatever was necessary to make the appeal effectual. On the trial in-the district court the damages were largely [373] increased, and the court below allowed the appellant there the costs of the appeal, which were entered in the judgment. In this we think the court below was wrong. The proceeding, even on appeal, is not a civil action, so as to be governed by the statute prescribing costs in such action. It is a special proceeding, controlled by the statute establishing it. This act, sections 60 and 61, provides for costs on an appeal to a justice of the peace, but section 62, which relates to appeals to the district court, is entirely silent on the subject of costs ; and as it does not provide for costs on such appeal, none can be recovered. It is undoubtedly a defect in the statute, but the court cannot supply the omission. The judgment must be modified by deducting the amount allowed for costs, and the case will be remanded for that purpose.