
    The City of Des Moines v. Casady et al.
    
    1. Oity of Des Moines: charter. The city of Des Moines has passed from its old, charter, and is governed" by the general law relating to municipal corporations. Mere irregularities in making the change avail nothing in an action by the city to enforce the payment of an assessment.
    2. New trial ¡ error without prejudice. The judgment below will not be reversed for an error in admitting evidence on the trial below when the record shows that, subsequently, competent evidence was introduced establishing the same fact.
    3. Evidence! publication op ordinance. It is competent to prove by parol the publication of an ordinance. Such evidence is original and not secondary.
    4. Municipal corporation: sidewalk assessments. A personal judgment cannot be recovered against the grantee of real estate for assessments made for constructing sidewalks in front of the same prior to his acquiring title; neither is it competent in any case to render such judgment against a party who has not been notified of the order directing the construction of such walks.
    
      Appeal from Polk District Court.
    
    Friday, December 28.
    A suit to recover of the defendants the cost of constructing certain sidewalks in front of their lots, which they had refused and neglected to do, after due notice, within the time prescribed, agreeably to the provisions of an ordinance of the.city passed for that purpose on the 13th day of June, 1861, and duly published, according to law, as is 'alleged. The defense consists in a denial of the complaint. The trial resulted in a judgment for plaintiff. The defendants, excepting to various rulings during the trial of the cause, appeal.
    
      jPolk db Hubbell for the appellants.
    
      Sewa/rd ¡¡kftiih for the appellee.
   Lowe, Ch. J.

I. The objection that the city had not passed from under its old charter; and that there was nothing to show that.it was now governed by , ,. , ... the general law relating to municipal corporations, under which alone it would have authority to proceed in the collection of this tax, does not commend itself to our favor. The record satisfies us that the change was made, and mere irregularities in effecting the same cannot avail themselves in a proceeding of this nature.

II. If it be conceded there was error in allowing the plaintiff to prove title in one of the defendants by his testimony on the stand, the prejudice thereby resulting was abundantly removed by the subsequent introduction of the deeds themselves, these showing beyond controversy the exact condition of the title.

III. Another error relied on is, that the court permitted plaintiff to prove the publication of the ordinance, under which the proceeding was instituted by parol. . . ' , Ihe objection goes to the point that it was not the best evidence, but that the newspaper itself in which the publication was made should have been introduced.

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 fact, a matter in pais, susceptible of proof by any one cognizant thereof.

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.

IV. The defendants Casady and Tidrick alone appeal, and they make this further question: At the time the order was made for the construction of these sidewalks, Casady did not own the lots along Qr pr011^ 0f wixich they were built, and if Tidrick had any interest in either of them he was not notified. Axxd Casady now claims that, as notice was given to the former proprietors, and tlie work done before he acquired any interest in said lots, the court erred in rendering against him a personal judgment. The defendant Tidrick claims that if he had an interest he was not notified, and hence not liable. And both these positions, as we understand the record, are well taken. The lots or parcels of land afterward bought by Casady may be liable for the amount expended by the city. That is to say, the city may have a lien on said real estate,.which maybe enforced against it; or the city may have a right to a personal judgment, if desired, against the owners at the time the order was made and notice thereof given. But, conceding that defendant might recover from his grantors upon the covenant of .his deed, this is no reason for making him liable personally. And, therefore, both because he was not notified to make the improvement, and because he did not at the time own the property, the court erred in rendering the judgment, as in a personal* action.

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 facts can be more clearly shown, and there will be less hazard in disposing of the same.

Reversed.  