As already stated, the evidence shows that all the members of the city council were present at, and participated in, the meeting held August 10th. The evidence also shows that all the plaintiffs were present at such meeting. There is no contention that any of the protestants, or any other person interested, was in any manner misled, or deprived of an opportunity to be heard, on account of the protests being considered at the meeting held August roth. It does appear that there was present at that meeting such a large number of persons that it became necessary to adjourn the meeting to some public hall in order to accommodate the crowd. Of course, the contention of the plaintiffs that the proceedings of the city council are irregular and invalid because no proper action was taken on the protests is predicated upon the premise that there was in fact a sufficient protest filed, viz. a protest signed by the owners of a majority of the property liable to be specially assessed for the proposed improvement. For the statute provides:
“If the owners of the majority of the property liable to be specially assessed for such proposed improvement shall not, within fifteen days after the first publication of such resolution, file with the city auditor a written protest against such improvement, then the majority of such owners shall be deemed to have consented thereto.” § 3704, C. L. 1913.
In the complaint in this case it is alleged that the protests filed were signed by a sufficient number. In the answer it is denied that sufficient protests were filed, and it is alleged that the protests filed were, as a matter of fact, not signed by the owners of a majority of the property liable to be specially assessed for the improvement. Upon the trial the sufficiency of the protests became an issue. Both parties introduced some evidence upon the question. The defendants offered the testimony of the city engineer, who testified that at, and immediately prior to, the time the protests were acted on, he examined the tax lists to ascertain what real property in the city was owned by the protestants, and that he found that the protestants were not the owners of a majority of the property liable to be specially assessed. And upon the trial there was introduced in evidence a certain plat prepared by the city engineer, showing the property owned by the protestants and the property owned by others who did not protest. The city engineer testified that this plat showed the ownership of such property as it appeared on the last tax list on August 10, 1920. The only evidence adduced by the plaintiffs was that of the plaintiff Peitz, one of the aldermen, who testified that he had been a
