To the Circuit and District Courts from County Court, etc, that the failure to take it, in time, was without fault on the part of petitioners. Reynolds v. Miller, 6 Iowa, 459. d. Proceedings in appellate court. 121. Trial de novo. On the trial of an ap might be legally adjudged against him in the further progress of the cause, was sufficient to give the district court jurisdiction. The Du116. practice. On an application to the buque and Pacific Railroad Co. v. Crittenden, district court to allow an appeal from an order | 5 Iowa, 514. of the county court, after the expiration of the time limiting appeals, a demurrer to the application was sustained by the district court, and, on appeal to the supreme court, it was ordered that the judgment of the district court stand reversed and the cause be remanded and the appeal allowed as prayed in the petition. It was held that the district court did not err in making an order as commanded by the supreme court, or refusing to hear evidence touching the issue, raised by the defendant on the allegations of the petition, after the order allowing the appeal was made. Heirs of Reynolds v. Miller, admr., 14 Iowa, 97. c. The appeal bond. 117. Amount of. When an appeal is taken by executors from an order of the county court. removing them from office and appointing their successors, and the bonds of such execu tors on file are sufficient to cover all the assets coming into their hands, the appeal bond should | be in a sufficient sum to cover the costs of the proceeding. In the matter of Pierson's Executors, 13 Iowa, 449. 118. -filing of bond. Section 267, Revision of 1860, regulating appeals from the county court, does not require the appeal bond to be filed ten days before the sitting of the district court, but that the appeal shall be taken to the next district court, if there be ten days intervening. Whitehead v. Thorp & Fallis, admrs., 22 Iowa, 425. 119. — amendment. A defective bond, filed upon an appeal from an order of the county court, allowing a claim against an estate, may be amended, without prejudice to the parties, within such reasonable time after discovering its defective character as to work no injury to the adverse party. Citing Revision of 1860, $4119. Mitchell v. Goff, 18 Iowa, 424. peal from an order made by the board of super- Prosser v. Wa 122. Appeal from assessment of city commis sioners. An appeal from a report made by commissioners appointed by the city council of the City of Keokuk, to assess the damages sustained by the owners of private property taken for the extension of a street, with an assessment of taxes on property benefited by such extension, under chapter 152, of the Acts of 1857, takes the case to the district court for trial, on the merits of the report. Runner, Wickersham & Wycoff v. The City of Keokuk, and Hiatt v. Harbin, 11 Iowa, 543; Umbarger v. Bean et al., 15 Ibid. 256. 123. Additional pleadings. Where an account against a county was rejected by the county court, from which decision an appeal was taken to the district court, it was held that the county could properly file an answer in the district court, pleading a set-off and a former adjudication. Ford v. Jefferson County, 4 Iowa, 566; State ex rel. Brackett v. County Judge of Floyd County, 5 Ibid. 380. 124. Motions to affirm or dismiss: failure to prosecute. When an appellant fails to docket his cause and prosecute his appeal in a proceeding to prove up a claim against the estate, tho district court may affirm the judgment of the court below, or dismiss the appeal, leaving the judgment below sustained. Voorhies & Co. v. Eubank, executor, 6 Iowa, 274. 125. - failure to return transcript. If the appellant complies with the requirements of the 120. An appeal from an award of commis- statute, by duly claiming the appeal and filing sioners, under the act granting railroad com- the appeal bond, the failure of the county judge panies right of way, approved July 18, 1853, to return the transcript to the succeeding term of made by filing in the office of the district court, the district court, will not vitiate the rights a claim for an appeal from such finding and a of the appellant, and constitutes no cause for a bond with sureties approved by the clerk, con- dismissal of the appeal. Whitehead v. Thorp ditioned for the payment of whatever sum & Fallis, admrs., 22 Iowa, 425. 126. To the Circuit and District Courts from the County Court, etc. (3) In Special proceedings. appearance by executor. After an executor or an administrator has appeared be131. Right of way assessments: issues on apfore the county court in proceedings to prove peal. Upon an appeal from the assessment of up a claim against the estate and consented to damages by sheriff's jury, in the act entitled “An a continuance, and the appointment of an audi-act* granting to railroad companies the right of tor to audit the claim of the plaintiff; he can not, on appeal to the district court, move to dismiss the suit for want of notice, as required by law. Voorhies & Co. v. Eubank, executor, 6 Iowa, 274. 127. waiver of objection. The appellees in the district court moved to dismiss an appeal from an order of the county court relating to the establishment of a road, on the ground that the application for damages was not made within the time required by law, and because the district court had no jurisdiction over the question of damages. It was held that, as the county judge had acted upon the question of damages without objection, the appeal should not be dismissed. Ball et al., v. Humphrey et al., 4 G. Gr. 204. 128. -jurisdiction: waiver. An application was made to the county court to open proceedings establishing a road, so far as to allow the plaintiff to file a claim for damages made after the road was finally established. The application did not show any excuse, under oath, for not applying within the time required by law, and was dismissed by the county court. On an appeal, the question was first raised as to the jurisdiction of the county court, and the district court, notwithstanding the delay in presenting the question, properly dismissed the appeal, on the ground that the county court had no power to entertain the application. Smith v. Dubuque County, 1 Iowa, 492. 129. Contradiction of record. On an appeal from the county court to the district court, in pro ceedings to prove up a claim against the estate, the transcript showed that the executor or administrator made an appearance in the court below. It was held that he would not be permitted to show by affidavit that he did not appear, and thus contradict the record of the county court. Voorhies & Co. v. Eubank, executor, 6 Iowa, 274. 130. Appeal from order establishing road. On appeal to the district court, from an order establishing a road, the appellant is entitled to a new assessment by a jury in the district court. The City of Des Moines v. Layman, 21 Iowa, 153. way," approved January 18, 1853, the cause is to be heard upon its merits and not upon exceptions, taken to the action of the sheriff or jury as to the competency of either of them acting in the premises. The Mississippi and Missouri Railroad Company v. Rosseau, 8 Iowa, 373; The Burlington and Missouri River Railroad Company v. Sinnamon, 9 Iowa, 293. 132. -it is not the notice which perfects the appeal from an assessment of damages for right of way condemned under the act of January 18, 1853. Where a party files with the sheriff, within thirty days after such assessment, the appeal bond, such filing gives the district court jurisdiction, and the appeal should not be dismissed on the ground that notice of the appeal was not given to the other party within thirty days after the assessment of damages was made. The Dubuque and Pacific Railroad Company v. Shinn, 5 Iowa, 516; The Dubuque and Pacific Railroad Company v. Crittenden, Ibid, 514. 133. but notice must be given. Where the report of the commission to assess damages for right of way taken by railroad company, was taken to the district court, on appeal, fourteen months after the filing of the appeal bond, and it appeared that the bond was filed within the thirty days prescribed by the statute, but that no notice was given to the railroad company after the assessment of damages; it was held that the court erred in hearing the case and rendering judgment therein, without notice to the company. Burlington & Missouri River Railroad Company v. Sinnamon, 9 Iowa, 293. *The act cited in the above section is reprinted as article 3, chapter 55, Revision of 1860, being sections 1314 to 1331 inclusive. The provision of the section relating to appeals is as follows: "That either party may have the right to appeal from such assessment of damages to the district court of the county where such lands are situated, within thirty days after such assessment is made. But such appeal shall not delay the prosecution of the work upon said railroad if said corporation shall first pay or deposit with the sheriff the amount so assessed by said freeholders, and in no case shall said corporation be liable for the costs of appeal, unless the owner of such real estate shall be adjudged and entitled upon the appeal to a greater amount of damages than was awarded by said freeholders." Section 4 of the act, being section 1317 of the Revision of 1860. 134. To the Supreme Court. waiver of notice. On an appeal by a railroad company to the district court, from the assessment by a sheriff's jury of the damages sustained by the owner of land over which it is constructing its railroad, it cannot complain that such assessment was made without notice to it, as required by law. Borland v. The Mississippi and Missouri Railroad Company, 8 Iowa, 148. 135. injunction pending appeal. When the owners of real estate appeal to the district court from the action of a jury allowing them no damages, by reason of the appropriation of their land for the purposes of a street, they are entitled to an injunction to restrain the appropriation of the land and the opening of the street, while the appeal is pending, and until the same is determined. WRIGHT, C. J., dis senting. Ibid. 136. what will effectuate appeal. In the absence of any statutory direction as to the manner of taking an appeal from the assesment of damages for right of way, it seems any act of the party usually required in cases of appeal from one tribunal to another, is sufficient. Robertson v. The Eldora Railroad and Coal Company, 27 Iowa, 245. 137. It is accordingly held, that notice of appeal to the opposite party is sufficient. And it seems that in case of appeal by the land owner no bond is necessary. But if one should be held necessary, the omission to file it would not operate to dismiss the appeal, as in such case the court may require one to be filed. Ibid. 138. failure to file papers. The failure of the officer to file the papers until the first day of the next term, after the appeal was taken constitutes no sufficient ground for dismissing the appeal. Ibid. in cases arising under section 3, of that act. Ragath v. The City of Dubuque, 4 Iowa, 343. 141. Failure to pay docket fee: rule of court. A rule of the district court to which a cause was appealed, provided that, if the filing fee was not paid before noon of the first day of the term, the appellee might pay the same, and on motion have the appeal dismissed or judgment affirmed. Held, where the filing fee was not paid by the appellant until after noon of the first day of the term, but before the filing of a motion of the appellee to affirm, that the motion was properly overruled. Robertson v. The Eldora Railroad and Coal Co., 27 Iowa, 245. 142. Ad quod damnum proceedings. The district court has concurrent jurisdiction with the circuit court of appeals in ad quod damnum proceedings. Section 4, chapter 86, acts of the 12th General Assembly, was not repealed by section 2, chapter 153, acts of 13th General Assembly. Davey v. The Burlington, C. R. & M. R. R. Co., 31 Iowa, 553. 143. The district court has concurrent jurisdiction with the circuit court, of all appeals in special proceedings for the assessmen of damages for the taking of private property for public use. The City of Ottumwa v. Derks, 32 Iowa, 506. 144. But in order to effectuate the appeal, the petition provided for by section 1067 of the Revision, must be filed in the appellate court, upon which a report of the facts in the nature of a bill of exceptions can be made. Ibid. II. APPEALS TO THE SUPREME COURT. a. In what cases an appeal lies.* 145. General rule. An appeal may be taken from any decree rendered in a cause which finally determines any material issue between the parties, though another branch of the suit is still pending and undetermined. Lucas Thompson & Co. v. Pickel et ux., 20 Iowa, 490. 139.- service of notice on railroad director: appearance. Semble, that service of notice of appeal upon a director of a railroad company, is a sufficient service on the company under sec- *The following statutes are referred to, and tion 2825 of the Revision. But, if not, an aping of some of the propositions stated in this their text seems necessary to a clear understandpearance by the appellee to object to the service sub-title; Section 1555 of the Code of 1851 is would operate as a general appearance, and cure reprinted as Section 2631 of the Revision of 1860 (Code of 1873, § 3133), and is as follows: the defect. Ibid. 140. Amended charter of Dubuque: streets. An act entitled "An act to amend an act to incorporate and establish the city of Dubuque," Laws of 1852 and 1853, chapter 54, does not provide for an appeal or other mode of review, "The supreme court has an appellate jurisdiction over all judgments and decisions of any of the district courts, as well in cases of civil actions, properly ent character." so called, as in proceedings of a special or independ Code of 1851, section 1556: "SEC. 1556. Intermediate orders involving the merits and materially affecting the final decision may also be reviewed on appeal." This has been superseded by sections 2632 and To the Supreme Court-In what Cases an Appeal lies. 146. Intermediate orders. Sections 1555, 1556, 1557 and 1989 of the Code of 1851, contemplate appeals from intermediate orders in all cases; but the proceedings, on the trial in chief, in the district court are not necessarily delayed by such appeals. An appeal from an interlocutory order does not divest the district court of its jurisdiction as to the cause in chief. Pierson v. David et al. 1 Iowa, 23. his order removing executors. In the Matter of Pierson's Executors, 13 Iowa, 449. 153. granting new trial. From an order granting a new trial. Newell v. Sanford, 10 Iowa, 396; Caffrey v. Groome, Ibid. 548. 154. -striking out interrogatories. Whether an appeal lies from an order striking out interrogatories attached to a pleading, doubted; the court inclined to the opinion that it does not fall within any of the subdivisions of section 2632, Revision of 1860. Davenport Gas-Light & Coke Co. v. The City of Davenport, 15 Iowa, 6. 155. From a verdict. When an appeal pur 147. Orders from which it is held appeals lie. From orders sustaining or dissolving an attachment; but such appeal does not bring up for review the record in the principal action, unless it is necessary and material for the understand-ports to have been taken from a judgment of ing of the ruling from which the appeal is taken. Johnson & Stevens v. Butler, 1 Iowa, 459; Berry v. Gravel, 11 Ibid. 135. 148. dissolving injunction. From an order dissolving an injunction when such order affects the merits of the cause, and involves an adjudication upon any of the material questions in the controversy. The Trustees of Iowa College v. The City of Davenport, 7 Iowa, 213. 149. quashing notice. From an order quashing the original notice. Elliott v. Corbin, 4 Iowa, 564; Worster, Templin & Co. v. Oliver, Ibid. 345. 150. appointment of receiver. From an the district court, and the record discloses the verdict of a jury, and does not show that judg ment was rendered therein, the appeal should be dismissed. Heath v. Groce, 10 Iowa, 591; Jordan v. Henderson, 19 Ibid, 565. 156. From judgment: by default. An appeal may be taken from a judgment rendered by default, or from a decree pro confesso. Woodward v. Whitescarver et ux., 6 Iowa, 1; Doolittle v. Shelton, 1 G. Gr. 271. 157. by confession. An appeal lies from a judgment by confession. Troxel v. Clarke, 9 Iowa, 201; Edgar v. Greer, 7 Ibid. 136. 158. by unauthorized judge. Though a judgment rendered by a person who was not order appointing or refusing to appoint a re-judge of the district court, but sitting as such, ceiver. Callanan & Ingham v. Shaw et al., 19 Iowa, 183. 151. garnishee. From an order discharging a garnishee. Bebb v. Preston, 1 Iowa, 460. 152. discharging rule. From an order, discharging a rule, requiring a county judge to show cause why an appeal was not allowed from 2633, Revision 1860 (Code of 1873, §§ 3164, 3165), as follows: "SEC. 2632. An appeal may also be taken to the supreme court from the following orders: 1. An order made affecting a substantial right in an action where such order, in effect, determines the action and prevents a judgment from which an appeal might be taken. 2. A final order made in special proceedings affecting a substantial right therein, or made on a summary application in an action after judgment. 3. When an order grants or refuses, continues or modifies a provisional remedy; or grants, refuses, dissolves, or refuses to dissolve, an injunction or attachment; when it grants or refuses a new trial, or when it sustains or overrules a demurrer. 4. An intermediate order involving the merits and tnaterially affecting the final decision. 5. An order or judgment on habeas corpus." SEC. 2633." If any of the above orders are made by a judge of the district court, the same is reviewable in the same way as if made by the court. Code of 1851, section 1557, reprinted in the Revision of 1860, as section 2634 (Code of 1873, § 3166). is void, an appeal will lie therefrom to the "SEC. 1557. The court may also, in its discretion, prescribe rules for allowing appeals on such other intermediate orders or decisions as they think expedient, and for permitting the same to be taken and tried during the progress of the trial in the not retard proceedings in the trial in chief in the court below; but such intermediate appeals must district court." Code of 1851, section 1989: "SEC. 1989. The supreme court may reverse or affirm the judgment below or render such judgment as the district court should have done, according as they may think proper," This was superseded by section 3536, Revision of 1860 (Code of 1873, § 3194), as follows: "The supreme court may reverse or affirm the judgment or order below, or the part of either appealed from, or may render such judgment or order as the district court or judge should have done, according as it may think proper." The territorial legislature by section 67 of the act relating to proceedings in chancery, approved January 23, 1839, provided that "Any party, plaintiff in a decree made by the district court, may appeal therefrom to the supreme To the Supreme Court - Who may Appeal. 166. From decision of supreme judge. An appeal to the supreme court does not lie from a decision or order of one of the judges thereof, 160. From order punishing contempt. The of a circuit judge, in vacation, dissolving an inCode of 1851, section 1606, provided "no junction. Aliter, if the order is made by the appeal lies to an order to punish for con- court while in session. Jewett v. Squires, 30 tempt, but the proceeding may in a proper Iowa, 92. case be taken to a higher court for revision by certiorari." Chapter 251, section 1, Laws of 1857, provided that in all criminal cases in which judgment may hereafter be ren-in a habeas corpus proceeding. In re Curley, dered in any of the district courts of this State 34 Iowa, 184. against any defendant, either the defendant or the State may, after judgment, appeal from such judgment to the supreme court of the State of Iowa, at any time within one year from the rendition of such judgment. Held, that the latter act did not change or modify the provision first mentioned, and did not confer the right to appeal from an order to punish the contempt. Dunham v. The State of Iowa, 6 Iowa, 245; The First Congregational Church of Bloomington v. The City of Muscatine, 2 Ibid. 69. 161. By agreement. A criminal cause cannot be appealed to the supreme court by agreement of parties before a final judgment is rendered in such cause. Rutter v. The State of Iowa, 1 Iowa, 99. (This ruling is based upon section 3090 of the Code of 1851.) 162. Waiver of right to appeal. A stay of execution under section 3293, Revision 1860, operates as a waiver of the right to appeal. Revision 1860, section 3294. Seacrest v. Newman et al., 19 Iowa, 323. 163. In chancery causes. Under the State constitution, chancery causes can be heard in the supreme court, only on appeal. Chapman v. Arnold, 1 G. Gr. 368. 164. From general term. The general term is an intermediate appellate tribunal provided by law for a substantial purpose, and causes taken on appeal thereto should be there argued, examined, and decided with appropriate and befitting care. An affirmance by consent, with a view to an ultimate appeal to the supreme court, ought not to be allowed by the general term. Roads v. Garman, 27 Iowa, 338, 165. From order dissolving injunction: circuit judge. An appeal does not lie from an order 167. From intermediate rulings. An appeal to the supreme court does not lie from a ruling of the court below, upon the admission or exclusion of evidence. The ruling or order appealed from, must extend to and affect the merits of the case; if it be merely incidental to the progress or trial of the cause, no appeal will lie. Richards v. Burden et ux., 31 Iowa, 305. Aliter, when such ruling upon the admissibility of evidence virtually disposes of the whole case. McCoy v. Julien, 15 Ibid. 16. b. Who may appeal. 168. By party to the record. An appeal can be taken only by a party to the proceedings in which the order is made. Phillips v. Shelton, 6 Iowa, 545; The State of Iowa ex rel., Alderson v. Jones, County Judge et al., 11 Ibid. 11. 169. Co-parties. Where one of several parties appeals to the supreme court and serves notice of such appeal upon his co-parties, they may join therein and avail themselves of all the benefits arising therefrom. Barlow and Townsend v. Scott's Administrators et al., 12 Iowa, 63. 170. Cannot be taken by lands. In an action to foreclose a tax-title against certain lands and the unknown owner thereof, in which the name of no person appeared as a party defendant, it was held that the lands cannot appeal, and that where the name of no person appears, as appellant, the appeal should be dismissed. Fuller v. The Unknown Owner of Certain Lands, 9 Iowa, 430. 171. Garnishment. A principal defendant may appeal from a judgment against garnishee. Sinard v. Gleason, 19 Iowa, 165. court within thirty days from the time such decree shall amount, exclusive of costs, to the sum of shall have been entered in the minutes of the court." $25." The organic act, section 9, contained the folLaws of 1839, page 138. At the same session, by sec-lowing provision: "And writs of error, bills of extion 31 of the "Act regulating the practice in the district courts of the territory of lowa," approved January 25, 1839, it was provided that appeals from the district courts to the supreme court of this territory shall be allowed in all cases where the judgment or decree appealed from be final, and ception, and appeals in chancery causes, shall be allowed in all cases from the final decisions of the said district courts to the supreme court, under such regulations as may be prescribed by law; but in no case, removed to the supreme court, shall trial by jury be allowed in said court." |