Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1905-07-05
BARBER COMPANY
MADE DEFENDANT
Judge Burnham Orders Asphalt
Paving Company Into Court
to Defend Its Work
EFFECTS FoRTy-sIx CASES
Application of tho City That the As
phaIt Company Be Brought Into the
A. N. French Case As Defendant
Ordered, and Ruling is Entered In
All of the Similar Actions.

BY the order of Judge Burnham the
Barber Asphalt Paving Company must
appear in the district court and defend
its work against the claims Of nom
compliance with contract In the forty
six paving cases now pending. The
order is most important and sweep
ing one and makes the Barber Asphalt
Paving Company defendant with the
city In the forty-six cases brought
by the residents along State and
Church streets. and Fourth avenue
who are resisting the efforts Of the
city to levy against the abutting prop
erty for the cost of the paving.
Tho order. which was made on the
application of the city's attorneys in
Judge Bnrnham during vacation and
was filed with the clerk Of courts today
The arguments were written and the
particular case on which the order
was issued was that Of A. NJ French
VS.. the city, but n stipulation in the
case says the same order shall be en-
tered in each of the other forty-flve
cases
City's Contention.
The city's contention from the be-
ginning, which was embodied in its
application, has been that the Barber
Asphalt Paving Company was q nee
essary party to the litigation piimar-
lily, because the question as to wheth-
err or not it had performed it's con-
tract, was the question on which rest
ed the determination Of whether any
assessment at all could be made
against the properties. And that If it
was found that the contract had not
been complied with, and the ASSESS
ment made by the council for that rea-
son was set aside, the
Barber Asphalt Paving Com
pany should be adjudicated by
one and the same trial and thus for
ever afterwards bar the possibility Of
different determination of the same
phaIt Paving Company might bring
against the city.
Judge Burnham's Ruling.
Judge Burnham, In ordering the
Barber Asphalt Paving Company to
appear In the cases, holds as follows
in his ruling: THAT full determine
ton of the appellee's rights and liabi!-
tiles in the premises cannot be determ-
ined without the presence of the Bar
Der Asphalt Paving Company, and it
appearing at this time that such can
be done by their appearance in this
cause. and that it. too, without any
manifest prejudice to the rights of the
appellant, 1t is therefore ordered that
the Barber Asphalt Paving Company
be made party to this action, and the
same is ordered entered in each Of the
other cases"
Other Rulings.
In the demurrer entered by the at
torneys for George i. LaPlant in the
case Of Marshall Ice Company VS.. La
Plant, which asked for a permanent
injunction against LaPlant, restraining
him from tearing out the mill dam,
Judge Burnham has sustained the de-
murrer, and the Marshall Ice Com
pany will file an amended petition.
In another paving case, that of
Adolph Kunkle VS. the city. in which
the city entered a demurrer against
the plaintiffs petition, Judge Burnham
has overruled the demurrer and the
case will be tried on the original pc
tition.
Eastern Resorts in 1905.