#### John McKinnon and Wife, v. Cedar Rapids and Iowa City Railway & Light Co., Appellant.

Eminent domain: right-of-way: damage: appeal. Where a rail-1 way company appealed from an award of damages in a condemnation proceeding for right-of-way, an appeal by the landowner was not necessary in order that he might procure a larger award on the trial of the company’s appeal.

Condemnation: appeal. Where both the railway company and land-2 owner appealed from an assessment of damages for right-of-way and *427the two appeals were consolidated, after, which the company dismissed its appeal without objection, the order of the district court iñ refusing to dismiss the landowner’s appeal and affirm the assessment will not be reviewed.

*Appeal from Lirm District*Court.— HoN. B. H. Milled,, Judge.

Tuesday, JanuaRy 17, 1905.

Appeal from action of tbe lower court in overruling the motion of defendant to affirm an allowance of damages made in a condemnation proceeding, from wbicb tbe plaintiff — ■ that is, the landowner —r bad appealed. — ■

*Affirmed.*

*John A. Deed,*for appellant.

No appearance for appellee.

McClaiN, J.—

In a condemnation proceeding instituted by tbe railroad company to have damages assessed for a right of way over plaintiff’s land an award was made, and tbe company served notice of appeal, and bad the appeal docketed, as provided by Code, section 2009. Thereafter the plaintiff (that is tbe landowner, who, by tbe provisions of tbe sections just cited, is to be treated as plaintiff) also served notice of appeal, and caused a transcript of tbe proceedings to be filed with tbe clerk of tbe district court, but did not pay any filing fee. The railroad company thereupon caused an appeal by tbe landowner to be docketed,. paying tbe filing fee, and asked tbe district court by motion to affirm the assessment of the sheriff’s jury, under tbe provisions of Code, section 3660, for failure of tbe plaintiff to prosecute bis appeal by having the same docketed. The trial court overruled this motion, and ordered the so-called appeal of-plaintiff to be consolidated with that taken by tbe railrohd company from tbe same assessment. Tbe company then dismissed its appeal in tbe district court and now complains of the action of that *428court in overruling the motion to dismiss the plaintiff’s appeal.

It is apparent that the case before us presents nothing but a question of costs. No appeal by the landowner to the district court was necessary, after the company had already appealed, in order that the landowner might get larger damages than those awarded by the sheriff’s jury should he be found entitled to them on the trial of the company’s appeal. See Code, section 2009, 2011. Perhaps he was entitled to serve a notice on his own account, and have the sheriff transmit any portion of the finding of the sheriff’s jury not already transmitted in response to the company’s notice. ' However that may be., plaintiff has not objected, so far as appears, to the dismissal of the appeal by the company, madg after the order of consolidation. We cannot see what possible advantage would accrue to the company from a reversal of the ruling by which the district court refused to dismiss the landowner’s appeal, if one was taken, which has already been, in effect, dismissed by the dismissal of the company’s appeal, with which it has been consolidated. We do not try mere abstract or hypothetical cases.— *Affirmed.*