Jones v. Baker

• Decision Date: 18 October 1929
• Citation: 231 Ky. 135,21 S.W.2d 143
• Parties: JONES v. BAKER, Police Judge.
• Court: Kentucky Court of Appeals

21 S.W.2d 143

231 Ky. 135

JONES v. BAKER, Police Judge.

Court of Appeals of Kentucky

October 18, 1929

Appeal from Circuit Court, Harlan County.

Action by F. M. Jones against V. M. Baker, Police Judge, etc. From the judgment, plaintiff appeals. Appeal dismissed without prejudice.

Brock &amp Wall, of Harlan, for appellant.

J. C Baker, of Harlan, for appellee.

THOMAS J.

The appellant and plaintiff below, F. M. Jones, is a licensed attorney and has an office and engages in the practice of law in Harlan, Ky. Some time prior to the beginning of the year 1929, the city council of Harlan enacted an ordinance levying various professional and occupational license fees upon persons engaged in the callings subject to the license, and providing a penalty for so doing, without obtaining the required license, of a fine of not less than $5 nor more than $19, and it further provided that each 24 hours of such engagement should constitute a separate offense.

Plaintiff was such a licensed attorney on the 1st day of January, 1929 and continued to practice his profession in Harlan without obtaining the license required by the ordinance, the fee for which was $10. On the 18th day of April, 1929, plaintiff still having failed to obtain the license, a warrant was issued for him, and he was cited to appear before the defendant, Baker, who was police judge of the city of Harlan for trial. He did not appear at the designated time and the minimum fine for his violation was assessed against him, but he still failed and refused to obtain the license until May 23, thereafter. But before he did so another warrant was issued by defendant on a similar charge, followed by a similar conviction and fine.

On June 6, 1929, plaintiff filed this action in the Harlan circuit court against defendant in his official capacity seeking to prohibit defendant from further prosecuting him for other infractions of the ordinance, and in his petition the foregoing facts were incorporated, with elaboration, as were also all the grounds for the writ, none of which impresses us as possessing merit, and none of which will we set out in this opinion for the reason hereinafter appearing. Upon the hearing the presiding judge of the Harlan circuit court sustained the motion in part and issued the writ to the extent of prohibiting defendant from instituting proceedings and trying plaintiff for any violation of the ordinance occurring prior to April 18, 1929, when he was first convicted, but overruled the motion and declined to prohibit defendant from prosecuting plaintiff for violations of the ordinance between that date and May 23d thereafter, when he procured the license. From that portion of the judgment sustaining the motion and granting the writ as to violations occurring prior to plaintiff's first conviction, there was no appeal, nor is there any motion for a cross-appeal on this record, which is an attempted appeal by plaintiff from so much of the judgment as overruled his motion and refused to prohibit defendant from prosecuting him for each violation of the ordinance occurring between April 18, 1929, and May 23d thereafter; but for the reasons stated below we will be compelled to dismiss the appeal without determining the merits of the case.

The record upon which this appeal is attempted to be prosecuted is made up solely of the original papers filed in the circuit court, and none of them was, either singly or collectively certified by the clerk of the court as constituting the record upon which the case was heard in the circuit court. Section 737 of our Civil Code of Practice expressly provides for the making of a certified copy or transcript of the record of the case in the circuit court for the purposes of appeal to this court, and which it is required shall consist of a complete copy of all the orders and papers including the evidence, that composed a part of the record as heard in the trial court, unless a schedule is filed by the appellant directing a less portion of the record transcribed. ...