Breuer v. Gibson

This action [Charles C. Breuer and H. W. Morganthaler v. John H. Gibson et al.] was commenced to enjoin the collection of certain assessments levied upon the plaintiff’s lots for a street improvement, on the ground that the street was improperly and negligently constructed. The amended answer contains the averment that the plaintiff petitioned the city through its proper boards tc make said improvement in the manner in which .it was afterwards made, and wherein they agreed to pay for the whole cost of such improvement except 2 per cent of the entire cost of the improvement and the costs of the intersections. This averment is nowhere controverted by reply, and hence the court did not err in refusing to hear testimony tending to prove that the street was negligently and improperly constructed.

A rehearing will therefore be' denied.