Restad v. Town of Scambler

Berry, J. Gen. St. 1878, c. 13, § 62, as amended in Laws 1881, c. 23, § 1, provides that where the amount of damages claimed on account of laying out a highway exceeds $100, an appeal “may be taken within 30 days to the district court,” “by filing in the office of the clerk * * * a bond, * * * and by the service of a written or printed notice of such appeal upon the chairman of the board of supervisors or the county commissioners.” The appeal is taken by [516] filing the bond and by the service of the “notice of such appeal; ” that is to say, both are necessary to perfect it. But the notice required is not a notice that the appeal has been perfected, for this would' require it to state that it had itself been served, (which is absurd,) but a notice that the party appeals from the determination with which he is dissatisfied. Hence, although, in the natural order of things, it would be well to file the bond first, so that when the supervisors receive notice they can ascertain at once that the appeal is perfected, and attend to it, there is nothing in the statute which makes this indispensable. Nothing can be done in reference to the highway pending the right to appeal; and hence, if, within the 30 days allowed for the appeal, the bond is filed- and the notice served, there is no reason why the appeal should not be held to be legally perfected, whichever of these acts may be done first; and we hold accordingly. The order dismissing the appeal is reversed, and the case remanded for further proceedings.