Babbitt v. Woolley

JUDGE EOBERTSON

delivered tiie opinion of the coort:

Without proof of an ordinance authorizing the digging of the well at the cost of property-holders, and what property-holders, the appellant could not maintain his action against the appellees for contribution. The ordinance filed did not do so, and a general ordinance that did was not exhibited. Consequently, in the absence of both allegation and proof of any such ordinance, the judgment dismissing the petition was proper and inevitable.

It was the duty of the appellant and his attorney to know that there was such an ordinance before the institution of the suit, which could not be maintained without it; and the affidavit of the attorney that he did not know of the existence of any such ordinance until after the hearing and dismission, was altogether insufficient to authorize a rehearing. Consequently, although the general ordinance sufficiently specified the distances as required by the charter, and gave reasonable notice to the owners who should contribute, yet, as the first judgment should stand, the last, to the same effect, should not be reversed; wherefore, the judgment appealed from is affirmed.