Smiths v. Dubuque County

Wright, C. J.

(dissenting). — That tbe county court erred in dismissing tbe application for damages, on tbe testimony of McOraney, can scarcely admit of a doubt. Without reaching that point, however, tbe case is decided on another ground, by tbe opinion of the majority of tbe court, in which I cannot concur.

I agree, that tbe county court was not bound to receive tbe application, or adjudicate tbe petitioner’s claim to damages, at tbe time it was*presented. But I cannot think, that it therefore follows, that it might not be beard. Tbe subject matter, it cannot be denied, came properly within tbe jurisdiction of that tribunal. Those claiming damages, and those petitioning for tbe road, and who resisted tbe assessment of tbe damages, appeared before tbe court, and submitted such claim for bearing, and thus jurisdiction was obtained over tbe persons of tbe parties, as well as tbe subject matter. Under such circumstances, it may have been exceedingly impolitic to bear the application at so late a day. But no objection being made, and tbe cause being beard, I do not think tbe jurisdiction could be questioned, for tbe first time in tbe appellate court. Had objection been made, or bad tbe county court, on its own motion, refused to entertain the application, tbe District Court could properly have reviewed tbe question, and held that tbe application was too late. *497But as tbe record stands, I do not think that tbe question, whether consent can confer jurisdiction, arises, -any more than if tbe parties bad voluntarily appeared before a justice, •and by consent, bad a judgment by default or otherwise, set -aside, and there re-adjudicated tbe matters involved or settled by such judgment. Eor this , was virtually a contest between those petitioning for tbe road and those claiming -damages. The road being less than three miles in length, if damages were awarded, they were. to be paid by those asking tbe road (Code, §§ 522, 546); and from tbe order -of tbe court, either party could appeal. See Ball et al. v. Humphreys et al.

But, again, suppose that on this application, presented at the time and in the manner shown, the county court had, upon tbe report of appraisers awarding damages, ordered by proper record entry, that tbe road should be established, .■provided the petitioners therefor should pay such assessed damages, and in pursuance thereof, the road had been opened, -and used as a public highway, but the sum assessed not being paid, suit should be brought against the petitioners, or on their bond provided for in section 522. Could they plead •successfully, that tbe county court had no jurisdiction, and thus defeat the action ? I think clearly not. The action in -assessing the damages might have been irregular, but certainly not void. And in my view, tbe answer must be the •same in tbe appellate court, where no objection was made before the inferior tribunal. There is such a thing as waiving •defects and irregularities, both as to tbe time and manner of procedure, so as to preclude after objection, and, I think, •this is one of those cases.

The objection that if the county court could hear this application three months after the establishment of the road, so it could three years, or any time thereafter, I think, has •muek force as an argument addressed to the county court.; but I do not admit its -force or pertinency in the appellate •court, after such adjudication has been had without objection.