
    Brown v. Ellis.
    1. Pleading! certiorari: answer to amended petition. Wlieretliere is an answer to tlie original petition in a certiorari proceeding, an answer to an amended petition which is but a repetition of the same matter contained in the original one, will not be held necessary.
    2. Roads! establishment OR. Where the ¡contest in the applications for two roads, is, in effect, as to the ehoice of two routes for the same road, the applications may be considered and acted upon together, by the board of supervisors.
    3. -reíusal op supervisor to be sworn. The establishment of a road will not be held irregular because during the contest before the board of supervisors, one of the supervisors refused to be sworn unless required by the board, when the proposed evidence was merely cumulative, and a correct decision in. no manner alone depended upon it.
    4. -establishment conditioned on payment op expenses. Nor will an, order establishing a road on condition that payment of expenses be made by the applicants, be held defective, because no time was fixed by the board for such payment.
    
      Appeal from Linn District Court.
    
    Thursday, October 29.
    Certiorari to tlie board of supervisors of Linu county, to review tlieir action and proceedings in establishing a road upon the petition of defendant. Plaintiff, and defendant, with others, petitioned separately for the establishment of two different roads. Tlie road petitioned for by defendant was established by the supervisors. Upon the answer, and return of the supervisors to the writ of certiorari, the cause was dismissed. Plaintiff appeals.
    
      Smyth dá Yowng for the appellant.
    
      Thompson & Davis for the appellee.
   Beck, J.

— 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.

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.

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.

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.  