Garvin v. Wells

Wright, C. J. The errors assigned are: 1. For reversing the judgment of the justice, &c.; 2. In rendering final judgment and dismissing the cause, instead of remanding the same to the justice. However weighty or important the questions raised by the appellant by his demurrer, may be, as abstract propositions, we do not conceive it necessary to examine them, as the record stands in this case. It will be observed that there is no objection made to the form of the answer, nor to the fact that the ordinance relied upon, is not properly made a part of the pleading. The points made by the demurrer, relate to the power of the city to pass the ordinance, and its effect upon the right of the plaintiff to recover, granting tliepow 288 er to enact it. This court cannot take judicial notice of the provisions of the ordinance, nor is there anything in the record to inform ns whatsit is. "We cannot, therefore, determine whether it is such an one as the city had the power to pass, nor its effects upon the plaintiff’s right to recover, if defendant acted under it as marshal, in killing the dog. Had the objection been made, that the answer should have set forth the ordinance, and thus contained that upon which the defendant relied for his justification, a different question would have been presented. The presumption is, that the district court decided correctly, and that it either did not have this ordinance before it, and hence was unable to determine whether it was obnoxious to the objections made, or that being properly brought to its attention, it wras found not liable to the objections. If there was error in the ruling made, the party complaining should show it. There is nothing in the record to repel the presumption of the correctness of the decision. Conboy v. Iowa City, 2 Iowa, 90. The court erred in dismissing plaintiff'’s action, upon overruling the demurrer to the answer. The cause should have been remanded to the justice, or a trial de novo awarded in the district court. The judgment should have been substantially respondent ouster. Eor this error, the judgment is reversed.