City of Des Moines v. Stephenson

19 Iowa 507

• Court: Supreme Court of Iowa
• Decided: January 17, 1865
• Status: Published

Opinion

Dillon, J.

i. pkactkm for sidement. I. Section 1068 of the municipal corporations act, Rev., p. 176, authorized the city to institute the action “ against all the owners or against each or any number of them, embraced in any one assessment, but the judgment or decree shall be rendered separately for the amount properly chargeable, and any proceeding may be served {severed) in the discretion of the court, for the purpose of trial, review or appeal.”

The action of the court was but the fair exercise of tiiis discretion. The several defendants may make different defenses, and the order of the court will tend to prevent confusion in the proceedings and record. As against defendants who made no defense or objection or application to sever, the court did not “ order ” separate petitions but simply “ gave leave ” to file them.

And even if it had ordered a separate petition to be filed against each lot owner, the only effect would have been to impose upon the .plaintiff’s attorney the labor of writing the petition. This is a matter of practice confided to the discretion of the court below. Many courts wholly refuse to reverse a ruling or order which rests in the discretion of the inferior tribunal. Certain it is that discretionary rulings or orders relating to practice should be reversed only in cases of manifest abuse, resulting in substantial prejudice.

2._8tnfr. ktrued?" II. We concur in the opinion of the city’s attorney, that §§ 1068, 1069, of the Revision, and not §§ 2844, 2846, apply to, and govern the proceeding; and it is also our opinion that the former two sections 1068 and 1069, are not repealed by § 4187.

Affirmed.