Everts v. Town of Bixby

• Decision Date: 13 July 1909
• Citation: 103 P. 621,24 Okla. 176,1909 OK 164
• Parties: EVERTS v. TOWN OF BIXBY.
• Court: Oklahoma Supreme Court

103 P. 621

24 Okla. 176, 1909 OK 164

EVERTS v. TOWN OF BIXBY.

Supreme Court of Oklahoma

July 13, 1909

Syllabus by the Court.

A prosecution for the violation of an ordinance of an incorporated town, under the laws in force in the Indian Territory prior to statehood, is a civil, and not a criminal proceeding.

1a. The recital of the record on review in this court will control over the statement of a motion on the part of the plaintiff in error, which was supported in the district court only by her affidavit.

The affidavit for appeal appearing in the record never to have been sworn to before any officer, nor to have been filed in the mayor's court within the time required by law held, that the district court on either ground would be justified in dismissing the appeal.

The plaintiff in error, as appellant from the mayor's court to the district court, having failed to lodge the transcript in the district court by the first day of next term after the judgment was rendered in said mayor's court, further said cause having been set for trial, the plaintiff in error having notice thereof, and it having been reached on due call of the docket for trial, the plaintiff in error not being present either in person or by attorney, held, that the district court was justifiable in reaching the conclusion that said plaintiff in error had failed to prosecute her appeal.

3a. The plaintiff in error having failed to prosecute her appeal, it was at the option of the defendant in error either to proceed to trial on the appeal, or have judgment rendered for the amount of the original judgment and costs in its favor.

A motion to set aside an order of the district court dismissing an appeal on account of laches of the appellant, involves the exercise of a discretion by such court; and, where the record fails to affirmatively show an abuse thereof, the judgment of the lower court should not be disturbed.

Error from the United States Court for the Western District of Indian Territory at Tulsa; W. R. Lawrence, Judge.

Francis R. Brennan, for plaintiff in error.

Chas. R. Reuter, for defendant in error.

WILLIAMS, J. (after stating the facts as above).

The plaintiff in error makes five specifications of error, or assignments as to why the judgment of the lower court should be reversed; but we will consider them all together.

The first three contentions, made in support of said specifications, are to the effect that the action was a criminal prosecution, and that neither the said mayor's nor the district court had any jurisdiction. But that question is neither properly raised here, nor is it essential to the determination of this appeal to pass on same. However, in the case of Fortune v. Incorporated Town of Wilburton, 5 Ind. T. 252, 82 S.W. 738, and Id., 142 F. 114, 73 C. C. A. 338, 4 L. R. A. (N. S.) 782, a controlling case has expressly decided that a prosecution for the violation of a town ordinance is a civil, and not a criminal, action.

It is further contended that, if it was a civil proceeding, no summons as required by law was served on the plaintiff in error. In the case of Hodges et al. v. Frazier, 31 Ark. 60, the court said: "The defendants appealed to this court, and here argue that, Chick being a nonresident, no affidavit of that fact appears to authorize a warning order against him. Whether such affidavit was lost with the original papers does not appear. It is not material. Chick having appealed to this court from the original decree which was reversed, he thereby became a party to the proceeding, and must follow the cause to its conclusion, or take the consequences." In the case of Farmers' National Bank of Vinita, Plaintiff in Error, v. First National Bank of Pryor Creek, Defendant in Error (decided by this court at this term, but not yet officially reported) 103 P. 685, it was held that, the United States Commissioner exercising the jurisdiction of a justice of the peace by virtue of certain statutes of Arkansas extended to, and put in force in, the Indian Territory (Act Cong. May 2, 1890, c. 182, 26 Stat. 98 Ind. T. Ann. St. 1899, p. 13, § 39; Act Cong. March 1, 1895, c. 145, 28 Stat. 695, Ind. T. Ann. St. 1899, p. 17, § 48), having jurisdiction of the subject-matter, and having rendered judgment without having jurisdiction of the person of the defendant, when such defendant appeared and filed an affidavit for appeal to the United States Court for the Northern District of the Indian Territory at Vinita, and superseded the judgment, it thereby entered its appearance, and made itself a party to the proceeding, and could not thereafter be heard to complain of the judgment rendered in the United States Court at Vinita.

As to the contention that no complaint had been filed in the mayor's court, and therefore no jurisdiction was acquired of said action, either by the mayor's or district court the record recites that a complaint was filed on April 15, 1907,...