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posite notice waiving time and copy thereof. Alice M. Cummings." Also a return of the sheriff that on the 19th day of February, 1903, he "served the same on Perry M. Cummings and on Charles H. Cummings, minors, by reading the same to each of them, and delivering to each a true copy thereof, in the presence and hearing of their mother, Mrs. Alice M. Cummings, at her usual place of residence" in the county: Even though service had been in accord with the requirement of the statute, it was served long after the time fixed for appearance, which for this reason was at an impossible date. The statute exacting the designation in the notice of the time and place for the appearance of the persons served always has been held to be mandatory, and the service of a notice, not containing such designation, confers no jurisdiction. Kitsmiller v. Kitchen, 24 Iowa, 163; Fernekes v. Case, 75 Iowa, 152, 39 N. W. 238; Haws v. Clark, 37 Iowa, 355; Genther v. Fuller, 36 Iowa, 604. In the last case the point here involved was decided; the only difference being in that service was by publication. To name an impossible day is equivalent to naming no day at all, and such an omission renders the notice, not merely defective, but no notice at all. The distinction between such a notice and those which are defective merely is clearly pointed out in Lyon v. Vanatta, 35 Iowa, 521. Where the notice is so wanting in the requirements made essential by the statute as not to constitute any notice when served, the court is without jurisdiction and without authority even to appoint a guardian ad litem. Allen v. Saylor, 14 Iowa, 435; Mooney v. Maas, 22 Iowa, 380, 92 Am. Dec. 395. But the service was not such as exacted in order to confer jurisdiction of the minors. Section 3533 of the Code provides that, "if the defendant is a minor under fourteen years of age, the service must be on his father or mother, or guardian, but if there be none of these within the state then on the person therein having the care of, and control over him, or with whom he resides or in whose service he is employed." Service was not effected by the acts described in the sheriff's return. Because of their disability this could have been effected only by service on the mother in their behalf.

Disregarding the sheriff's return, then, we inquire whether the acknowledgment of service by the mother conferred jurisdiction over these children. She was a party to the action, and apparently acted for herself alone. She was neither served with notice as mother of the minors, nor did she acknowledge service as such for them. Nor is there anything in the acknowledgment to justify the inference that she intended to accept service for them, as acknowledgment of service of a notice is one of the statutory modes of service (section 3518, Code); and probably the mother might have bound her children by accepting service in their behalf. McCartney v. City of Washington, 124 Iowa, 382, 100 N.

W. 80. But she did not do so, and for all that appears she might have acknowledged service on herself without noticing that the minors were made parties, as the acknowledgment did not involve the receipt of a copy of the notice. The statute of Alabama required, in order to confer jurisdiction on infants under fourteen years of age, service on them also, and in Hodges v. Wise, 16 Ala. 509, all were defendants in the action, and service was had on the minors and also on parent, but not as parent of the minors, and the court held that jurisdiction was not acquired to appoint a guardian ad litem for them. In Morgan v. Morgan, 45 S. C. 323, 23 S. E. 64, service was accepted by plaintiff in the action as guardian of the defendant minors, and it was held that jurisdiction of the latter was not acquired, but this was put on the ground that, owing to the adversary character of the proceedings, the guardian was not in a situation to act for his wards. In Rodgers v. Rodgers (Ky.) 31 S. W. 139, the circumstances were such that jurisdiction of the minors could be acquired only by service of process on the minors and their mother, all of whom were defendants. The sheriff's return did not show that a copy was delivered the mother as such for the minors, but it was held that, as she received a copy for herself, an additional copy would have added nothing to her information, and that, as the object of the law exacting a delivery of a copy of the summons to her as mother of the minors had been accomplished, the service was effective in conferring jurisdiction. The design of service on the parent, guardian, or other person having the minor in his custody is to direct the attention of one likely to be interested in him to the fact that he is sued, to the end that his rights may be the more certainly and effectually guarded. If the service of notice, though not precisely as enjoined by statute, is such as certainly must have conveyed this information, it would seem to be such as at least to invoke the jurisdiction of the court to pass on its sufficiency. It will be observed that the last decision is not decisive, as the mother in that action actually received a copy of the notice. It may well be doubted whether personal acknowledgment of service may be construed as necessarily conveying the above information. If it be so conceded, however, it does not follow that one not acting in a representative capacity or in some way authorized so to do may waive service of notice for another, either by appearance in court for or by acknowledging for them timely service after the date fixed for appearance. Every one is entitled to his day in court, and through notice to be afforded an opportunity of being heard, and this cannot be abrogated by the unauthorized act of one upon whom notice is directed to be served for them. See Gray v. Palmer, 9 Cal. 616; Kansas City, St. J. & C. B. R. Co. v. Campbell, 62 Mo. 585. The statute does not authorize the parent or guard

lan to waive service nor timely service thereof, and, even though the acknowledgment had been of service by the mother for the minors, as it was of a notice fixing an impossible date for appearance, it did not confer jurisdiction. In the absence of service of notice for the minors, the court was without jurisdiction to appoint a guardian ad litem, and the decree, if rendered on the service of notice alleged, is void. Good v. Norley, 28 Iowa, 188. See Rice v. Bolton, 126 Iowa, 654, 100 N. W. 634, 102 N. W. 509; Dohms v. Mason, 76 Iowa, 723, 39 N. W. 823. The suggestion that want of notice was not well pleaded is without merit, as is also the argument based on the thought that the decree is alleged to be voidable merely. According to the petition, it is void, and therefore the suit could not well be maintained under section 4091 of the Code. For the reasons stated, the ruling on the demurrer was erroneous. Reversed.

NOLAN v. REED et al.

(Supreme Court of Iowa. July 9, 1908.) 1. HIGHWAYS-DUTY TO REPAIR-COUNTY SUPERVISORS STATUTORY PROVISIONS.

The duty to repair highways is not imposed on the board of supervisors, but on township officers, by Code, tit. 8, c. 2, relating to the working of roads.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 25, Highways, § 323.]

2. SAME.

Code, 1482, which gives the board of supervisors supervision of the roads of the County, with power to establish, vacate and change them as herein provided and to see that the laws in relation to them are carried into effect," does not impose on the board of supervisors the duty to keep the highways in repair. [Ed. Note. For cases in point, see Cent. Dig. vol. 25, Highways, § 323.]

3. SAME-LIABILITIES OF OFFICERS.

Code Supp. 1907, § 1530, requires the board of supervisors to levy a tax for the purchase of road tools and machinery or for work done on the roads, as it shall determine. Code, § 1531, provides that the board shall at its April meeting determine the amount of money collected and credited to the road tax fund, and the manner in which it shall be expended, whether by contract or otherwise. Held, that the powers to be exercised under these sections, save that of levying the tax, are discretionary, requiring investigation and judgment in their determination, and where the board decides what work is to be done on a road by the county, if any, the several members thereof are not liable to any private person for any neglect or errors therein, in the absence of malice or corruption.

Appeal from District Court, Iowa County; R. P. Howell, Judge.

The petition alleged, in substance, that defendants are the supervisors of Iowa county; that a public highway extends from Wheeler's Corners north about a mile, then northeasterly to the bridge across the Iowa river, and on northerly to the city of Belle Plaine; that said defendants have negligently permitted the waters to cave in, take from, and gouge out of said highway from a few rods

north of said Wheeler's Corners, and for the distance of almost the entire length of said highway there is a ravine, ditch, or cañon, in some places to a width of 25 feet, for a considerable distance in depth of 13 feet, and that the said waters, at that particular place hereinafter mentioned, have been permitted by defendants to take from said highway 25 feet 3 inches thereof in width, and to a depth of 13 feet 3 inches, and that the defendants had a full and complete knowledge at all times of the condition of said highway; that upon ascertaining the dangerous condition of said highway the board of supervisors did appropriate $250, and expended the same thereon, appointing the bridge builder of the county to improve and render the same safe, and for some 15 rods caused to be driven a large amount of piling in the ditch and placed riprapping therein; that the board also expended a like sum contributed by the citizens of Belle Plaine for that purpose, and for several years have been attempting to better said highway, but negligently refused and failed to render it safe by the erection of barriers or placing signal lights or other warning to the public of the danger; that plaintiff's decedent while driving along said highway in the evening of February 19, 1906, with a load of baled straw, without fault on his part, was precipitated with team and wagon into the ditch at a point where it was 25 feet 3 inches wide and 13 feet 3 inches deep, and was killed. To this petition praying for damages to decedent's estate the defendants interposed a demurrer, which was sustained. and, as plaintiff elected to stand on the ruling, the petition was dismissed. Plaintiff appeals. Affirmed.

Tom H. Miller, for appellant. W. E. Wallace, for appellees.

LADD, C. J. The defendants, as members of the board of supervisors of Iowa county, are alleged to have been guilty of such lapses in the discharge of their official duties as to render them responsible for the death of plaintiff's decedent, who in passing along the highway in going toward Belle Plaine, without fault on his part, drove his team from the traveled way into a ditch, and was killed. The particular acts of negligence alleged are in omitting to erect barriers along the embankment; in not maintaining signal lights or otherwise warning the public of the danger of the ditch; in permitting the highway to become and remain unsafe because of the proximity of the ditch to the traveled way; and in maintaining the highway but 40 feet wide, when it might have been done at 66 feet in width. According to the petition, the board had ample funds and had undertaken to improve and repair the road by the expenditure of $250. But it was not averred that anything done by the board was performed improperly, or that its expenditures on the highway had rendered it less safe to

travelers or interfered with the care and maintenance of the road by the township officers. In other words, the sole complaint is that these officers have been guilty of nonfeasance, in that they as members of the board did not see to it that a road in dangerous condition was made safe. That duty is not imposed on the board of supervisors, but on township officers. Chapter 2, tit. 8. Code; Taylor v. Davis Co., 40 Iowa, 295; Wilson v. Wapello Co., 129 Iowa, 77, 84, 105 N. W. 363. Section 1482 of the Code does not conflict with this view; for, while it gives the board supervision of the roads of the county, it defines wherein by adding, "with power to establish, vacate, and change them as herein provided and to see that the laws in relation to them are carried into effect." Negligence in either of these respects is not alleged. The only authority of the board to interfere in the actual improvement or repair of the ordinary roads is found in the following statute:

Section 1530, Code Supp. 1907: "The board of supervisors of each county shall, at the time of levying taxes for other purposes, levy a tax of not more than one mill on the dollar of the assessed value of the taxable property in its county, including all taxable property in cities and incorporated towns, which shall be collected at the same time and in the same manner as other taxes, and be known as the county road fund, and paid out only on the order of the board for the purchase of road tools or machinery or for work done on the roads of the county in such places as it shall determine. Provided that on written petition of a majority of the electors who are freeholders of any township in any county, the board of supervisors may levy an additional mill in said township, to be expended by said board of supervisors on roads in townships where same is levied; but so much of the county road fund as arises from property within any city or incorporated town, except such pro rata share as may have been expended by the board for the purchase of road tools or machinery, shall be expended by the board for the purchase of road tools or machinery, shall be expended on the roads or streets within such city or town, or on roads adjacent thereto, under the direction of the city or town council; and the county treasurer shall receive the same compensation for collecting this tax as he does for collecting corporation taxes. Moneys so collected shall not be transferable to any other fund nor used for any other purpose. The board of supervisors shall levy such an additional sum for the benefit of such townships as shall have certified a desire for such additional levy, as provided for in section fifteen hundred and twenty-eight of this chapter; but the amount of general township fund and the county road fund shall not exceed in any year five mills on the dollar."

Section 1531, Code: "It shall, at the regular meeting in April, determine from the

auditor's and treasurer's books the amount of money collected and credited to said road tax fund. It shall also determine the manner in which said tax shall be expended, whether by contract or otherwise."

Manifestly the powers to be exercised under these sections save that of levying the tax are discretionary. Upon the creation of the county road fund, the board is to determine upon which of the many highways in the county the money shall be expended, and the relative portion of the limited amount at its disposal which shall be devoted to each. In deciding these matters, not only the condition of the highways, but the ability of the several townships to care for those within their borders, shall be considered; and then the method of expending the money is to be determined, whether by contract or otherwise. This necessarily depends on the character and extent of the improvements to be made. All these are matters requiring investigation and judgment in their determination, and the members of the board are not liable to any private party for any neglect in the exercise of these discretionary powers, where neither malice nor corruption have exerted an influence. McCord v. High, 24 Iowa, 342; Sells v. Dermody, 114 Iowa, 344, 86 N. W. 325; Elliott on Streets and Roads, § 577 et seq.; State v. Young, 134 Iowa, 505, 512, 110 N. W. 292. Possibly the county may be responsible for the proper performance of such work as the board undertakes to do under the sections quoted. If so, it is to be said that no claim is made but that the improvements as made were carefully executed, and the road in no worse condition than before. The action of the board in no way relieved the road supervisors or superintendent of the duty to maintain the roads in a reasonably safe condition, nor did it assume for the county that duty. The burden of the complaint is not that anything was done improperly, but that not enough was done to render the highway from Belle Plaine by way of Wheeler's Corners reasonably safe. As said, the determination of whether anything should be done on that road by the county and the amount was discretionary with the board, and the several members of the board of supervisors are not liable for any neglect or errors therein, unless influenced by malice or corruption, neither of which was charged in the petition. The ruling in sustaining the demurrer thereto is approved.

Affirmed.

THEULEN v. VIOLA TP. OF AUDUBON COUNTY.

(Supreme Court of Iowa. July 7, 1908.)

1. TOWNS-ACTIONS-CAPACITY TO BE SUED, A township cannot sue or be sued. [Ed. Note. For cases in point, see Cent. Dig. vol. 45, Towns, § 111.]

2. HIGHWAYS-REGULATION-INJURIES FROM DEFECTS-LIABILITY OF LOCAL AUTHORI

TIES.

Code Supp. 1907, § 1533, provides that, where the one road district plan is adopted by a township, the board of township trustees may let the contract for road work to the lowest responsible bidder or appoint superintendents of roads to oversee, subject to the direction of the board, all or any part of the work. Code 1897, $ 1536, provides that the power, duties and accountability imposed on road supervisors, so far as may be under the one road district plan, shall apply to contractors and superintendents. Section 1557 provides that, when notified in writing that any portion of a public road is unsafe, the road supervisor shall be liable for all damages resulting therefrom, after allowing a reasonable time for repairing it. Held, that a contractor for road work or superintendent in a township which has adopted the one road district plan would be liable for damages resulting from a defect in the highway if previously notified in writing and sufficient time had elapsed in which to repair it.

3. TOWNS-OFFICERS-TOWN BOARD-NATURE OF DUTIES.

The duties of township trustees save that of levying taxes are quasi judicial, and no liability attaches because of mere error or mistakes or even of negligence in their perform

ance.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Towns, § 55.]

4. SAME-DUTY AS TO KEEPING ROADS IN RE

PAIR.

Code Supp. 1907, § 1528, requires township trustees to fix the rate of tax for roads, etc., and to determine the amount to be allowed for a day's work on the roads. Section 1530 requires them to levy a tax for roads. Section 1532 requires them to consolidate the road districts of the township. Section 1533 provides that, when the one road district plan is adopted, the trustees shall direct the expenditure of road funds, and may let the work by contract or appoint superintendents of roads to oversee it, that the trustees shall cause weeds to be cut, etc. Section 1538 provides for their compensation. Held, that the trustees' duty is to exercise general supervision over highways, and it does not devolve upon them to keep them in repair.

Appeal from District Court, Audubon County; W. R. Green, Judge.

A demurrer to the petition was sustained, from which ruling the plaintiff appeals. Affirmed.

Geo. W. Bowman and J. M. Graham, for appellant. Cosson & Ross, for appellee.

LADD, C. J. The petition alleged that plaintiff's daughter in riding along the highway in the defendant township, without fault on her part, was thrown from the buggy in which she was riding because of a deep hole or gully in the road. She was seriously injured, and, having assigned her claim for damages to plaintiff, he prayed for recovery thereof from the township and Bowman, Perrine, and Gilbert, its trustees. A demurrer to this petition by the township was rightly sustained, as it is without capacity to sue or be sued. Township of West Bend v. Munch, 52 Iowa, 132, 2 N. W. 1047; Austin Western Co. v. Weaver Township (Iowa) 114 N. W. 189. The trustees are alleged as such to have had supervision and control of all

But

the highways in the township, and to have been advised of the defect by telephone prior to the injury, and to have "negligently and carelessly allowed the road to be in the defective condition as stated, and that the injury resulted therefrom." So that, unless these defendants as such officers owed the duty of maintaining the road in a safe condition, there can have been no breach thereof on which to predicate the charge of negligence. No doubt can exist as to the liability of a contractor or superintendent under section 1533, Code Supp. 1907, for damages resulting from some defect in the highway if previously notified in writing, and sufficient time has elapsed in which to repair the same. Sections 1536, 1557, Code. Unless so notified he is not liable. Sells v. Dermody, 114 Iowa, 344, 86 N. W. 325. the duties of the trustees of a township, save that of the levying taxes, are quasi judicial. Under section 1528, Code Supp. 1907, the township trustees are required at their April meeting to fix the rate of tax for the suc ceeding year for roads, bridges, guideboards, plows, scrapers, tools, and machinery, and to pay any indebtedness previously incurred for roads, to be determined and levied, which cannot be less than one mill nor more than four mills on the assessed value of the property in the township and shall be expended under their direction. They are also to say how much shall be allowed per day for the labor of a man, and for a man and team on the roads, and may certify to the board of supervisors a desire for one mill additional levy. See section 1530, Code Supp. 1907. Section 1532, Code Supp. 1907, requires them to consolidate the districts of the township, and, the section following, that, "where the one road district plan is adopted, the board of township trustees shall order and direct the expenditure of the road funds and labor belonging or owing to the township; may let, by contract, to the lowest responsible competent bidder, any part or all of the work on the roads for the current year, or may appoint not to exceed four superintendents of roads, to oversee, subject to the direction of the board, all or any part of the work, but it shall not incur an indebtedness for such purposes unless the same has been or shall at the time be provided for by an authorized levy; and shall order the township road tax for the succeeding year paid in money and collected by the county treasurer. It shall cause both the property and poll road tax to be equitably and judiciously expended for road purposes in the entire road district; shall cause at least seventy-five per cent of the township road tax locally assessed to be thus expended by the fifteenth day of July in each year; shall cause the noxious weeds growing in the roads to be cut twice a year, when necessary, and at such times as to prevent their seeding, and it may allow any land owner a

reasonable compensation for the destruction thereof, when growing in the roads abutting upon his land. If a superintendent, or superintendents of roads be employed, it shall fix the term of office, which shall not exceed one year, and compensation, which shall not exceed three dollars a day; and no contract shall be made without reserving the right of the board to dispense with his services at its pleasure." They are to require the qualification of the clerk, contractor, and superintendent, and are to "receive the same compensation per day for the time necessarily spent in looking after the roads as they do for other township business." Section 1538, Code Supp. 1907. It is apparent from mere reading of the several statutes that the duty of actually repairing the highways is not cast on the trustees. Their duty is to exercise general supervision, but the work is to be done and the responsibility assumed by the contractor or superintendent who is subjected to the same accountability as the supervisor under section 1557 of the Code. See section 1536. The duty of the board of trustees is to determine for which of the several purposes enumerated in the section with reference to the tax levy and how much for each the money raised shall be expended, how much of that devoted to roads shall be set apart for each, whether the work shall be done by contract or through employment of superintendents, but it does not devolve upon them to perform the duty of keeping the roads in repair. That is the duty of the contractor or superintendent, and he alone is liable under the conditions, defined by statute for damages consequent upon omission of such duty. In short, all the duties of the board of trustees in such matters are quasi judicial, and no liability attaches because mere error or mistakes even negligent alone in their performance. See Nolan v.

Reed et al. (decided at the present session of court) 117 N. W. 25; Mechem on Pub. Off. $ 700; Throop on Pub. Off. § 736. The ruling on sustaining the demurrer was correct. Affirmed.

ELECTRIC SUPPLY CO. v. PURSLOW et al. (Supreme Court of Iowa. July 7, 1908.) MECHANICS' LIENS-ENFORCEMENT-EVIDENCE -SUFFICIENCY.

In an action to establish a mechanic's lien, evidence held to sustain a judgment against the owners of a building on the theory that she and her agent authorized a tenant to make selection of lighting fixtures, understanding that, if they exceeded a certain amount for which the contracting builder was liable, the owner was to be responsible for the balance.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Mechanics' Liens, § 570.]

Appeal from District Court, Woodbury County; John F. Oliver, Judge.

Action to establish and foreclose a mechanic's lien upon a certain hotel property in the

city of Sioux City. The trial court rendered judgment against the owners of the property, and established a lien against the building, dismissing the action as to the original contractor, Keefe, and Donohue, the tenant. The property owners, Purslow and Miller, appeal. Affirmed.

Martin Neilan, for appellants. Marks & Marks, for appellee.

DEEMER, J. Mary Purslow, now deceased, was the owner of some property in the city of Sioux City upon which she desired to erect a hotel, and in the year 1905 she entered into a contract with one J. J. Keefe to furnish the labor and material whereby to construct the building according to certain plans and specifications for the agreed price of $73,500. By the terms of this contract the contractor was to furnish all the labor and material, and to build, furnish, and complete the hotel in every particular and detail, according to the plans and specifications. Provision was made for changes and alterations by the owner with the consent of the architect; but, if they entailed any additional expense, they were to be agreed upon before the changes were begun. The owner was not to pay for extra work or material, unless ordered by her and her architect in writing. The specifications stated that they were to include everything necessary to complete the building as shown, although the items were not specifically mentioned. These specifications also expressly provide that "electric light fixtures to the extent of $500 are included in this contract." Soon after the contract was entered into, the premises, with the proposed building, were leased to defendant Donohue. Keefe began work under his contract at once, and some time during the month of December, 1905, the question of electric fixtures for the building came up. Keefe submitted to plaintiff and other houses a list of the fixtures and electrical supplies to be used in the hotel for bids, and plaintiff's bid of $912 was accepted. Donohue notified both plaintiff and Keefe that this bid was accepted, and that Keefe was to pay $500 of the purchase price and the owner of the building the remainder. Plaintiff asked Keefe about this arrangement, and he (Keefe) said that it was all right so far as he was concerned, and that plaintiff had better ask the owner about the matter. Thereupon plaintiff met the agent of the owner, who had the building in charge, and asked him if Donohue's selection of the fixtures for the hotel was all right, to which the agent said, "Certainly." Plaintiff then put in the fixtures which had been selected, received the $500 from Keefe, and asked the owner for the balance. His request was refused, on the ground that Keefe was to furnish these fixtures. Thereupon this action was brought against the then owners, Mary Purslow having died in the meantime, the contractor, Keefe, and the tenant, Donohue. The judgment was against

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