22 Iowa 590 | Iowa | 1867
The second point in the demurrer is not well taken. The petition alleges that the defendant “ fixed and established a grade for Second street, as it was lawfully authorized to do,” This is the averment of an ultimate fact. It is not necessary to set out evidence “ showing that such grade was lawfully established;”' as, for example, by ordinance, or resolution setting forth a copy of same. This would be matter of evidence.
If the present law does not make the city liable for a change of grades, we do not and cannot decide, on this demurrer, or in this case either, whether it would be so liable if the previous law was different, and the change of grade was made after the city organized under the general incorporation act.
If there is not time to settle the evidence in term, let the parties agree to have this done in vacation; and if they will not so agree, the court may continue the cause until the next term.
The statute of 1866 is an important one. We are disposed to give the statute a fair interpretation. We do not believe, however, it was ever intended to allow the judge, in the absence of agreement, to certify to oral evidence after the trial term has closed, and in vacation. This point is squarely presented, and we determine it at once, in order1 that the profession may know the construction which the act will, in this particular, receive, so that,, in the preparation of their causes for this court, they
In the cause at bar, the evidence not being properly before us, we must presume the judgment of the District Court was correct.
Affirmed.