33 Neb. 430 | Neb. | 1891
This action was brought in the district court of Seward county by the plaintiff against the defendants named and a large number of other owners of real estate near the city of Seward, for the purpose of extending the limits of the city by taking in lands owned by the defendants.
It is alleged in the petition, in substance, that Seward is, and at the time stated was, a city of the second class, duly organized; that on the 4th of October, 1887, at an adjourned meeting of the city council duly held on the said day in said city, the following resolution was duly adopted by a two-thirds vote of said city council, to-wit:
“Whereas, The territory hereinafter described is situate contiguous to the corporate city of Seward, Nebraska, and a large portion of which territory is subdivided into parcels of ten acres or less; and
“Whereas, It would be materially beneficial and advantageous to said city to have the same annexed thereto, therefore,
“Commencing at the southwest corner of the city of Seward, Nebraska, and running thence due south to the south quarter corner of section 20, town 11, range 3 east; thence east on the south line of said section 20 to the southwest corner of section 21, 'town 11, range 3 east; thence east along the south line of said section 21,’ 1,950 feet, more or less, to where said line intersects the center of the channel of Blue river; thence in a southerly direction along the center of said river 720 feet, more or less, to a point where said river is not intersected by the boundary of the present Seward city limits; thence following along the southerly boundary of said city back to the point of beginning. Also commencing at the quarter corner between sections 21 and 28, town 11, range 3 east, and running thence east on the line between said sections 21 and 28, 287 feet; thence north on a line parallel with and 287 feet east of the north and south half section line through said section 21 to an intersection with the north line of said section 21; thence west 287 feet to the quarter corner between said sections 21 and 16, town 11, range 3 east; thence north along the north and south half section line through said section 16, 1,350 feet; thence west to an intersection with west line of section 16, at a point 1,320 feet north of the'southwest corner of said section 16 to the southwest corner of said section 16, 1,320 feet;
The vote upon the adoption of said resolution by said city council was as follows, to-wit: Those voting in favor of the adoption of said resolution : Mulfinger, Goehner, and Betzer — three votes “Yea”; and those voting against said resolution was Councilman Pence — one vote “Nay”; whereupon said resolution was then declared adopted, two thirds having voted in favor thereof, which said resolution, together with the vote thereon, was by G. F. Dickman, clerk of said city, by order of said council, duly spread upon the records of said council.
Two of the defendants, Jones and Moffett, filed separate answers, in which they admit that Seward is a city of the second class; that the persons named as officers of the city are such officers and that the defendants are the owners of the portions of land set forth in the petition, but deny all other allegations. Green and a number of other defendants joined in an answer substantially the same as that of Jones and Moffett.
The defendants below allege in substance that the lands owned by them are agricultural lands upon which they reside; that such lands are not held for purposes of speculation or to divide up in city lots or separate tracts for sale, but are held by each of said defendants as a home, etc.
On the trial of the cause the court found the issues in favor of all the defendants except Jones, Green, and Moffit, who answered, and against some of the others who had made default.
It will be seen that the first step in the proceedings is the adoption of a resolution by the city council. The language is, “When any city or village shall desire to annex to its corporate limits any contiguous territory, * * *
It is claimed that the passage of the resolution was admitted on the trial. If so, the record fails to show such admission. This court must be governed by the record as sent up from the court below. That, when duly certified, is presumed to contain all the evidence. If through some mistake or oversight it does not, this court cannot allow presumptions of fact to take the place of evidence. The question of the resolution does not appear to have been raised in the court below; nevertheless it was not, so far as this record discloses, introduced in evidence, nor was its existence admitted. This being so, the court had no proof, before it to justify its decree.
The question of the authority of the court to act in the premises was determined by this court in Wahoo v. Dickinson, 23 Neb., 426. In that case the record showed a resolution as the foundation of the action and it was sustained; but we have no such record. The judgment is therefore reversed and the action dismissed.
Reversed and Dismissed.