21 Iowa 570 | Iowa | 1866
We have been unable to see the force of this objection. The original ordinance itself was produced on trial; appended to it was the certificate of the city clerk, in which he declares that the ordinance was passed at a regular meeting of 'the city council on the 13th day of June, 1864, and was published in the Iowa State Register on the 17th day of June, 1864.
In addition to this, Mr. Sibley testified the ordinance above set out was published in the Iowa State Register, a newspaper published in the city of Des Moines, at or about the time named in the certificate of publication attached to said ordinance. The last section of the ordidance provides for the same to take effect after its publication in the Iowa State Register, &c.
Why is this not competent evidence ? Of what is it secondary ? The inquiry is not as to the contents or provisions off the ordinance, for that was before the court. Whether it had been published or not was an extrinsic
It may be said that if the printed copy was produced in court and testified to, that that would make the proof stronger and more satisfactory. Grant it, but the distinction between the best and secondary evidence is of quality, not of sti’ength. The rule does not demand the greatest amount of evidence which can possibly be given of any fact. Greenleaf on Evidence, section 82, says, that where the evidence is not substitutionary in its nature, but only a selection of weaker, instead of stronger, proofs, or an omission to supply all the proofs capable of being produced, the rule is not infringed. Suppose it was required to publish the ordinance six consecutive weeks in some newspaper before it can take effect. Would the rules of evidence requix’e that the newspaper of each week should be produced in court to prove the •fact ? And, if they were produced, would they, without more, be competent evidence that the requirement had been complied with? Certainly not, for, with change of date, they might all have been published on the same day. Other evidence aliunde would necessarily have to be produced. We hold, in short, that the evidence in this case was original, and, prima facie, at least, showed the publication of the ox’dinance. Not only so, if not published, and defendant could show it, the Revision (§ 1133) makes that fact a good defense. This, however, they did not attempt.
As to the defendant Tidrick, there was no evidence that he was notified to build the sidewalk for the building of which the city now seeks to recover. There was notice to Hoyt, Sherman & Co., of which Tidrick was at one time a member. But this firm did not own the property nor have ,any interest in it. The title was in Tidrick, and, as the record shows, he held the entire interest. Such notice was most clearly insufficient.
Upon this last ground, the judgment below is reversed.
Something is said in argument about’the notice being to repair, whereas the city constructed an entire new walk, and that for this reason there could be no recovery. It is' uncertain from the testimony what was the nature of the work done, and as the point last ruled will probably dispose of the case, we need not consider the effect of such alleged variance. If the question should again arise, the
Reversed.