Brown v. Ellis

26 Iowa 85 | Iowa | 1868

Beck, J.

1. Pleading: certiorari answer to amended petition. — I. It is urged by the plaintiff, that the judgment of the District Court iu dismissing the cause is erroneous for the following reasons: First, there was no answer to the petition and writ . , _ when the court ordered the dismissal. To the original petition defendant answered, and the cause coming on for hearing, defendant obtained leave to file an amended petition, which was done. This petition was substantially the same as the original petition, and required no other answer than the one already filed. Whatever appears in it, in addition to the facts contained in the original petition, demanded no answer.

2. Roads: establishment of. II. The return and answer of the supervisors, show that the applications for the two roads were considered and acted upon together. The contest, prop-A ° 7 x a erly, was the choice of two routes for one road; it was not claimed that both should be established. They were properly considered together, for the establishing of one would in effect defeat the other.

3. — refusal of supervisor to be sworn. III. In the contest before the board,' one of the super-, visors refused to be sworn as a witness unless required by the board. It appears that his evidence, pron , . , _ A posed to be given, was cumulative, and that the right decision of the question in no manner depended upon it alone. It was, therefore, within the discretion of the board to require him to testify. It does not appear that such discretion was abused.

4. — establishment conditioned on payment of expenses. IY. The order establishing the road is conditioned upon the payment of the expenses thereof, and no time is fixed for such payment in the order. It does not clearly appear to us, that, under the _ , - . % , statute, the board upon making such an order should fix the time for the payment of the expenses. Neither does it appear from the record that they were required so to do by plaintiff, and refused. If it be necessary that a time be fixed, it may be done, upon proper application, at any time.

We do not think that the District Court erred in dismissing the cause. Its -judgment is therefore

Affirmed.