
    Forney & Thayer v. Ralls & Willits et al.
    
    1. Ad quod damnum proceedings: pbactice. A proceeding ad quod damnum, except in so far as otherwise directed by statute, is to be conducted as an ordinary civil action and be governed by like rules so far as the same are applicable.
    3.-It is accordingly held, that a sale and transfer of a mill during
    the pendency of a proceeding to assess the damages caused to the property of adjacent land owners by reason of heightening the mill-dam, did not abate the proceeding, and that the purchaser might be substituted for the original owner.
    3.-new tbial. When the appellate court sustains a motion to set aside the award of the jury in a proceeding of that character, it ' is the duty of such court to order a new assessment under another writ, instead of dismissing the proceeding or rendering final judgment.
    
      
      Appeal from General Term, Eleventh District {Marshall County).
    
    Friday, January 27.
    In the month of August, 1868, J. Issachar Schofield commenced proceedings against the defendants to obtain a writ of ad, quod damnum, for the purpose of condemning the real property to be affected by a proposed increase in the height of his mill-dam at his flouring mill in Marshall county.
    The writ issued and a jury was called, the defendants notified and the damages duly assessed. The return, however, was in some manner informal and no sci/re facias was issued thereon.
    On the 17th of February, 1869, the plaintiffs, having purchased of said Schofield the mill property sought to be improved, filed in the proceeding what they call an amended petition, averring their purchase of Schofield and ownership of the mill property, and substitute themselves for Schofield as plaintiffs in the proceeding, gave the necessary notice, the writ issued and the sheriff summoned a jury under the provisions of the statute; the damages were assessed by the jury and their findings duly returned to the district court. A writ of sci/re facias was issued and served as the statute directs and return made. The clerk docketed the amended petition as a separate proceeding from that commenced by Schofield, the grantor of the plaintiffs. The plaintiffs, at the first term of the court after filing their petition, moved to consolidate their proceeding with that commenced by Schofield, which the court refused to do, and plaintiffs excepted.
    On the 10th day of April, 1869, the defendants, Ralls and Willits, filed" an answer setting up various matters to defeat the proceedings of the plaintiffs, and subsequently said defendants filed a motion to set aside and dissolve the finding and award of the sheriff’s jury as to the said Ealls and Willits. This motion was grounded on the same facts stated in the answer together with some additional facts.
    At the September term, 1869, of the court, the defendants, while their answer was still on file, called up their motion to set aside the finding of the jury, which being heard was sustained by the court, to which plaintiffs excepted and stood on the motion. The court thereupon dismissed the plaintiffs’ proceeding and they appeal.
    
      Boarclman ds Brown for the appellants.
    
      Henderson Bros. & Merrimo/n, for the appellees.
   Miller, J.

The appellants assign as error the overruling of their motion to consolidate the proceedings in this case with those commenced by their grantor. They insist that their petition was a supplemental pleading stating facts arising after the suit was commenced, and as such it properly belonged to the proceeding first instituted.

This is a special proceeding to condemn land under the right of emment domcdn.

Our statute provides: “ The rules of proceedings prescribed for civil actions by ordinary proceedings in the district court shall be followed in all proceedings of a special character, whether before the district court or any other tribunal, so far as applicable and not otherwise regulated.” Eev., § 4173.

The ad quod darnmum act provides in section first who shall be entitled to avail themselves of its provisions. The second section provides that the applicant shall file his petition in the district court, setting forth the locality, etc.; giving ten days’ notice to all parties to be affected by the erection of the dam. The third and fourth sections provide, that the clerk shall issue the writ to the sheriff of the county where the lands are situated, who is required to summon a jury of twelve men, who, after notice to the land, owners, are to assess the damages to each of such owners to be injured by the contemplated dam, as directed in the writ, and return their award to the court whence the writ issued. Section five requires the clerk, after the award of the jury is filed, to issue a scwe facias to the parties in the inquest mentioned, to appear and show cause, at the next term of the court, why leave should not be granted to build the proposed dam.

The scire facias being duly served, the court, by section six, is authorized, if it shall deem it reasonable, and for the public benefit, to issue a license to erect the proposed dam, on the applicants paying to the proper parties the damages decreed by the court, etc. Rev., ch. 54, art. 4, page 211.

Except so far as the statute prescribes the mode of procedure, the proceeding is to be conducted as in ordinary civil actions, and the rules prescribed for such actions, so far as applicable, shall be followed.

The Revision, section 2194, provides that “no action shall abate by the transfer or assignment of any interest therein during its pendency. In case of the marriage of a female party, the fact being suggested on the record, the husband may be made a party with his wife, whenever necessary. In case of cmy other hra/nsfer of interest, the action may be continued in the name of the original party, or the court may allow the person to whom the transfer or assignment is made to be substitued in the action,” etc.

"We are of opinion that the court erred in refusing to consolidate the proceeding of plaintiffs with that already commenced by their grantor Schofield.

The special proceeding instituted by him could have been conducted to a final determination, or the plaintiffs could have been substituted. In support of this view see the following cases: Alien v. Newberry, 8 Iowa, 65 ; Harvey v. Willtrout, 10 id. 105; Fannon v. Robinson, id. 272; Pratt v. Delman, 17 id. 307; Wahl v. Phillips, 15 id. 478.

But we are further of opinion that this error is not such as calls for a reversal of the case on this ground alone, for it is not apparent that the plaintiff has been in any manner prejudiced by the ruling.

The principal error relied on by appellants is the ruling of the court sustaining the defendants’ motion to set aside the verdict of the sheriff’s jury, and dismissing plaintiffs’ proceeding and rendering final judgment.

Applying the rules governing ordinary actions at law, to this proceeding, we are not satisfied that the court committed such an abuse of its discretion, in setting aside the verdict, as will warrant a reversal of the case on that ground. A stronger case must be made to justify a reversal where a verdict is set aside and a new trial ordered by the court below, than where it has been refused. Newell v. Sanford, 10 Iowa, 396; Alger v. Merritt, 16 id. 121; Head & Metzger v. Langworihy & Brothers, 15 id. 235.

If the court below in the exercise of a sound discretion has set aside a verdict, such order should be permitted to stand, though there may have been error upon some abstract legal proposition. Shepherd v. Brenton, 15 Iowa, 84. And this is especially true when the motion is grounded, as in the present case, upon misconduct of the jury, and gross inadequacy of the damages assessed by them. But upon sustaining the motion to set aside the verdict, it was the duty of the court to have ordered a new trial of the question of damages, by awarding another writ ad quod dammtm, under which the damages could have been reassessed by another jury.

The court erred, therefore, in dismissing the proceeding and rendering final judgment ' This could not be legally done until the damages were ascertained in the manner prescribed by law, and tbe issues made by tbe answer regularly tried. The assessment of damages by a jury, selected by tbe sheriff, is necessary before tbe court is authorized to adjudicate upon tbe merits of tbe application and render final judgment.

Tbe judgment of tbe district court is reversed, and tbe cause remanded for further proceedings in accordance with this opinion.

Reversed.  