City of Kirksville v. Gill
| Decision Date | 05 November 1917 |
| Docket Number | No. 12538.,12538. |
| Citation | 198 S.W. 178 |
| Parties | CITY OF KIRKSVILLE v. GILL. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Adair County; James A. Cooley, Judge.
"Not to be officially published."
Ed Gill, being charged with an offense against an ordinance of the City of Kirksville, moved to strike out a count of the information, and for his discharge. From an order sustaining motion, the City of Kirksville appeals. Affirmed.
A. Doneghy, of Kirksville, for appellant. C. E. Murrell and Weatherby & Frank, all of Kirksville, for respondent.
A prosecution of the defendant in the police court of Kirksville, a city of the third class, upon an information in two counts (relating to different offenses), resulted in a conviction and fine of $2 and costs upon one count, and his acquittal upon the other. Both defendant and the city appealed to the circuit court, where the city dismissed the count on which defendant had been acquitted. Whereupon the defendant filed a motion to strike out the other count and discharge the defendant, which motion the court sustained, and the city appealed, without filing a motion for a new trial, or any motion in the nature thereof.
It seems that the complaint originally filed in the police court contained but one count, and had to do with but one offense, and that the complaint upon which the case was tried in the police court was in reality an amended complaint. The grounds of the defendant's motion in the circuit court were: (1) That the count remaining, after the city's dismissal, was a departure; and (2) that the ordinance, on which the charge in the remaining count was based, was void on its face. The court did not specify upon which ground it sustained defendant's motion, and hence we cannot tell upon what ground it acted. It is clear, however, from appellant's abstract of the record, that the court heard and considered evidence in support of the motion; and it is also clear from appellant's abstract that, whatever was the basis of the court's action, it was obtained from the evidence offered on the motion, and not from what was disclosed by the face of the record. In fact, as the court heard evidence in support of the motion, and then acted on it without giving the grounds of such action, it cannot be said that the basis of the court's action did not rest upon what was found in the evidence. Now, while it is true that a motion to dismiss may be treated as filling the office and purposes of a demurrer, yet this can be only done when the question presented by the motion is purely a question of law arising upon the face of the...
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...W. Nat. Bk. v. McDermand, 187 S. W. 121; Butterfield v. Butterfield, 187 S. W. 295; Gill v. Farmers' Bank, 195 S. W. 538; City of Kirksville v. Gill, 198 S. W. 178. We think plaintiff's action was not prematurely brought. We have no doubt but that plaintiff is entitled to a trial on the cas......
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McAlister v. Graham
... ... 121; ... Butterfield v. Butterfield, 187 S.W. 295; Gitt ... v. Farmers' Bank, 195 S.W. 538; City of ... Kirksville v. Gill, 198 S.W. 178.] ... We ... think plaintiff's action ... ...
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State v. Brown
...198 S.W. 177 ... No. 12542 ... Kansas City Court of Appeals. Missouri ... November 5, 1917 ... Appeal from Circuit Court, ... Affirmed ... John C. Mills, Jr., of Kirksville, for appellant. Weatherby & Frank, of Kirksville, for the State ... TRIMBLE, J ... ...
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City of Kirksville v. Burton
...TRIMBLE, J. This case is similar in all respects, except as to the offenses charged, to the case numbered 12538, City of Kirksville v. Ed Gill, 198 S. W. 178. The latter case was argued and submitted, with an agreement between counsel representing both sides that the decision would govern a......