City of Tarkio v. Loyd

• Decision Date: 07 November 1904
• Citation: 82 S.W. 1127,109 Mo.App. 171
• Parties: THE CITY OF TARKIO, Appellant, v. W. R. LOYD, Respondent
• Court: Kansas Court of Appeals

82 S.W. 1127

109 Mo.App. 171

THE CITY OF TARKIO, Appellant, v. W. R. LOYD, Respondent

Court of Appeals of Missouri, Kansas City

November 7, 1904

Appeal from Atchison Circuit Court.--Hon. Gallatin Craig, Judge.

Cause affirmed.

W. R Littell for appellant.

(1) The court erred in overruling the plaintiff's motion to dismiss the defendant's appeal for the reason that defendant failed to file bond in the time required by law. Sec. 5929, R. S. 1899; secs. 4059 and 4060, R. S. 1899; Devore v. Staeckler and Sparfield, 49 Mo.App. 547. (2) The court erred in overruling plaintiff's motion to dismiss the defendant's appeal for the reason that defendant failed to file an appeal bond conditioned for the payment of costs as required by law and the order of the police judge granting the appeal. R. S. 1899, sec. 5929; R S. 1899, secs. 4059 and 4060; Devore v. Staeckler and Sparfield, 49 Mo.App. 547. (3) The court erred in sustaining defendant's motion to dismiss the cause for the reason that the ordinance upon which suit was brought was a valid ordinance, notwithstanding the exception contained therein. State ex rel. W. A. Moody, col., v. Wardell, ___ Mo ___; Lamar v. Weidman, 57 Mo.App. 507; sec. 5978, R S. 1899; Aurora v. McGannon, 138 Mo. 38. (4) The ordinance was complete in itself, without the exception clause and was valid and capable of being enforced without such clause, and, therefore, constitutional and the court erred in not so finding and holding. Railroad v. Brick Co., 85 Mo. 307; secs. 5958, 5978, R. S. 1899; Lamar v. Weidman, 57 Mo.App. 507; St. Louis v. Railroad, 14 Mo.App. 221; Water Co. v. Neosho, 136 Mo. 511; Verdin v. St. Louis, 131 Mo. 137; Tarkio v. Cook, 120 Mo. 7; St. Louis v. Railroad, 89 Mo. 44.

No brief for respondent.

OPINION

BROADDUS, J.

Proceedings were instituted against defendant on the twenty-fourth day of April, 1901, on the following complaint filed with the police judge of the plaintiff city and upon which he was tried and convicted, to-wit: "W. R. Loyd, defendant, to city of Tarkio, Missouri--Debtor.

"To the violation of the city ordinance requiring persons engaged in soliciting orders from house to house for the future delivery of goods, wares or merchandise without a city license--one hundred dollars. In this to-wit: that the said W. R. Loyd, on or about the twenty-second day of April, 1901, at the city of Tarkio, and within the corporate limits thereof, did then and there unlawfully engage in the business of soliciting orders, from house to house, for the future delivery of goods, wares and merchandise without first obtaining a city license. All of which is contrary to said ordinance in such cases made and provided, and against the peace and dignity of the said city of Tarkio."

Said complaint was signed and sworn to by one F. M. Meek. Upon his conviction, defendant filed affidavit for appeal to the circuit court of the county, but did not enter into the required recognizance prescribed by the statute in such cases.

When the case came up in the circuit court, the plaintiff filed a motion to dismiss defendant's appeal and affirm the judgment of the police court for the reason that the defendant had failed to file an appeal bond within the time required by law; and had failed to file such bond conditioned for the payment of costs of suit, as required by law and the order of the police court. While this motion was pending, the defendant filed a motion to dismiss the complaint on various grounds, some of which will be particularly noticed hereafter.

On the third day of June, plaintiff's motion to dismiss the appeal was overruled; and defendant's motion to dismiss the action was sustained. And on the same day defendant filed his recognizance on his appeal--but it does not appear whether it was filed before or after the motion to dismiss the appeal was overruled. The presumption is, however, that it was before and not afterwards, as that would have been proper--the presumption always being, in absence of proof to the contrary in matters of this kind, that the action of the court was regular and legal. But this could make no difference, as will be seen hereafter. The plaintiff appealed from the action of the court in overruling its motion to dismiss the appeal and from its action in sustaining the motion of defendant to dismiss the action. The plaintiff labors under the mistaken idea that the statute governing appeals from justice's courts in civil procedure applies to appeals from judgments in police courts of cities of the fourth class, of which plaintiff is admitted to belong. The defendant's recognizance on his appeal does not bind him and his securities to pay either the fine or costs in the event that the judgment against him should be affirmed. It only provides for his appearance at the next term of the circuit court; that he will prosecute his appeal with due diligence to a decision; that he will obey every order which shall be made in the premises; and that he will not depart the court within leave. It is in the form provided by section 2784, Revised Statutes 1899, which regulates appeals in cases of misdemeanors. Section 5937, idem, pertaining to cities of the fourth class, provides that appeals from convictions under section 5934, idem, for violation of ordinances of such cities, "shall be taken in the time and manner provided by the statutes in relation to appeals from judgments of justices of the peace in cases of misdemeanor." As...