
    Smiths v. Dubuque County.
    A failure to raise the question of jurisdiction, cannot confer upon the county-courts power to hear and determine a subject matter, which they are not authorized to try.
    Consent cannot confer jurisdiction.
    The county courts possess no jurisdiction to entertain and determine a claim for damages in consequence of the establishment of a road, after the time of final action establishing the road.
    Where a claim for damages, in consequence of the establishment of a road, is not made within thirty days after the appointment of the day fixed for final action on the application for such road, but is made before the road is finally established, unless a sufficient excuse for not filing such claim within the thirty days, is shown by affidavit, the county court should dismiss the application.
    Where at a January term of a county court, the day for final hearing on the application of a road, was fixed for the ensuing March term; and where it was claimed, in an application for damages in consequence of the establishment of the road, made after the road was finally established, that hut fifty-six, instead of sixty, days intervened between the January and March terms of said county court; Held, That if the county court proceeded irregularly in establishing the road, the irregularity should have been corrected in a direct application for that purpose, and could not be inquired into on an application to be let in to claim damagea
    And where an application to the county court, to open up the proceedings establishing a road, so far as to allow the applicant to file a claim for damages, made after the road was finally established, did not show any excuse, under oath, for not making the application within the time required by law, and the application was dismissed by the county court; and where in the District Court, on appeal, the question was first raised as to the jurisdiction of the county court, and the District Court dismissed the appeal, on the ground that the county court had no power to entertain the application; Held, That the decision of the District Court was correct.
    
      Appeal from the Dubuque District Court.
    
    Thomas McCkANEy petitioned tbe county court of Du-buque county, at tbe October term, 1851, for a road, called tbe Eagle Point Road, wbicb passed over tbe lands of tbe Smiths, taking about one-fourtb of a balf block of lots. Tbe matter was continued to tbe November term, at wbicb time an entry was made therein, showing that it came on to be beard, “ and it appearing to the satisfaction of the court, that all the prerequisites have been attended tof a commissioner was appointed to view and locate the road, and make report t.o the court. At the December term, no report having been filed, the matter was continued until the January term, 1852, when a report was filed and read, and time of final hearing was set for the'first Monday in March •following. It is claimed that full sixty days did not intervene between the January and March terms. At the March term, no application for damage having been filed, it was ordered by the court, that the same be declared a county road, as surveyed by the commissioner, and that the same should be platted and recorded; and that an order issue to the supervisor to open the same according to law — the record of which was made, as appears by the record before the court. On the 16th June following, the appellants, Smiths, filed in the county court a petition to open up the proceedings, so far as to allow them to file an application for damage, that commissioners be appointed to appraise the same, and they be allowed. This petition sets forth a want of notice of the proceedings laying out the road. It is not sworn to, nor is there any affidavit in support of it. Notice was given to McOraney, the petitioner, for the road. A hearing of the application was had, on which McOraney was allowed to testify, against the objection of the applicants, to the effect that a road had been located over the same ground a long time previous, and that the county commissioners had paid a former proprietor of the land, fifty dollars damage on account of it, whereupon the court ordered a relocation of the road, sworn to by McOraney, and dismissed the application.
    This application to open up the proceedings, was appealed to the District Court, and by that court dismissed. From this action of the District Court, an appeal to this court is now taken. It is assigned for error that the county court erred in the admission of the testimony of McOraney; the fixing a day for final action on the road within sixty days; and the accepting a report wbicb showed no damages. And for error of the District Court, in substance, the dismissing the application.
    
      ■Smith, McKinlay & Poor, for the appellants.
    
      L. A. Thomas, for the appellee.
   Isbell, J.

(Wright, C. J. dissenting). — Did the District Court err, in dismissing this application? It is apparent that the ground of the dismissal was, that the county court was not authorized to entertain the application, coming at the time and in the manner it did before that court.. It is insisted here, that no question haying been made before the county court, as to its authority to entertain the application, that the objection came too late for the first time in the District Court, and therefore should have been disregarded. Whether this is, or is not so, depends upon the question, whether the county court had or had not jurisdiction oyer the subject matter of the application, at the time and in the manner it came before it. For if it had such jurisdiction, any objection as to the regularity of the proceeding, merely, not made before that court, should be regarded by the District Court as waived. But no failure to object, could confer upon the court, a power to hear and determine a subject matter which it was not authorized to try. In other words, consent could not confer such jurisdiction.

The only authority given to the county court to entertain applications for damage, -on account of the laying out of roads, is contained in section 586 of the Code, which provides that within thirty days after the appointment of the day (that is, the day for final action on the matter), all claims for damage -in consequence of the establishment of the road, must be made, if at all.; but where a sufficient excuse for not filing such claim within the time aforesaid, is shown by affidavit, the claim may be considered, if made at any time before final action upon the road ; and the time for such final action may thereupon be postponed to a future day, if necessary. This gives full power to entertain 'sucb application at any time within thirty days, and also, under certain restrictions, after the expiration of thirty days and before final action. But we think it clearly denies that power, after final action establishing the road. Without the authority of this statute, the county court could not entertain an ap* plication of this kind at all. And when it says, where a sufficient excuse for not filing the claim within the time aforesaid, is shown by affidavit, the claim may be considered, if made at any time before final action, it constructively says, that it shall not be considered, if made after the time for final action. If that court may entertain such application three months after the final action establishing the road, we see no reason why it may not three years, or any other time after. Many good reasons, we apprehend, might be given why the time for making such application should be limited to the time of the establishing of the road; but it is unnecessary to dwell upon them, as we do not think the statute ambiguous.

But again: the statute requires, if an application is made • after thirty days from the time of fixing upon a time for final action, that an affidavit, showing excuse for not having filed the same within thirty days, shall be filed. No such affidavit was filed in this case. Although we would entertain doubts whether this were essential to jurisdiction, after thirty days, and before final action, yet, we would say, that the want of such affidavit, should have alone induced the county court to refuse to take notice of the application. We conclude that the county court had no jurisdiction to consider the claim, after the time of final action establishing the road*

But it claimed, that but fifty-six days intervened between the January and March terms, and the statute providing that a day must be appointed not less than sixty days distant, the establishment of the road was void, and that an establishment of the road not having yet been made, the application is in time. The record shows that the day for final hearing, was fixed at the January term, and that the hearing was had at the March term, but how many days intervened, we are not able to tell by tbe record. But we do not, however, regard this material in tbe adjudication of tbe question before us. If tbe court proceeded irregularly, in establishing tbe road, tbe irregularity should have ' been corrected by a direct proceeding to fhat end, and not on this ajDplication to be let in to claim damage. If the applicants bad moved for damage within tbe sixty days from tbe time of fixing tbe day for final bearing, tbe argument would come with more force. If wé are correct in tbe view we have taken of tbe question of jurisdiction, this taking-precedence of all other questions, it becomes necessary to consider tbe other points made in tbe case.

Tbe judgment of tbe District Court is affirmed.

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. But 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.  