
    Maxwell v. La Brune et al.
    1. Highway: establishment op: appeal: no notice to auditor: appeal dismissed. An appeal from the order of the board of supervisors establishing a highway was properly dismissed where no notice of the appeal had been served on the county auditor.
    2. Practice in Supreme Court: parties concluded by record. Where the admitted record in this court shows that certain alleged facts never existed, a reversal cannot be had on the ground that the trial court refused to allow appellant to show such alleged facts.
    
      Appeal from Dubuque Circuit Court.
    
    Friday, April 23.
    This was a proceeding before the board of supervisors to establish a highway. The supervisors established the road on condition that the petitioners pay all costs, and the damages assessed to plaintiff and others, amounting to $650. Upon appeal to the circuit court by defendant, the cause was dismissed, on the ground that no notice of the appeal was served upon the county auditor as required by law. Defendants appeal to this court.
    
      JET. T. McNulty, for appellants.
    
      Powers d¡ Lacey, for appellee.
   Beck, J.

I. The plaintiff filed an amended abstract showing that no notice of an appeal to the circuit court an(^ service thereof were filed either with .the county auditor or clerk of the- circuit court, and that such notice and return have never been made a matter ot record m the case m any manner, and that no notice of such appeal was ever served upon the auditor or plaintiff".

II. This amended abstract is not denied, and, under familiar rules and the practice prevailing here, is regarded as admitted, and as presenting the true condition of the record in the court below. It follows that the circuit court rightly dismissed the appeal upon plaintiff’s motion, the record showing that no appeal had been taken.

III. The circuit court overruled a motion by defendants to require the auditor of the county to correct the transcript “so as to show whether or not he was served . with notice of appeal, together with the date oi j. i : o service and filing.” A motion for a rule on the sheriff to return the notice of appeal was also overruled. Defendants now complain of these rulings. But surely they suffered no prejudice by and cannot complain of the rulings, for the reason that there were no such notice and service, a fact shown by the amended abstract, and admitted by their failure to deny it.

The judgment of the circuit court is

Affirmed.  