The City of Shelbyville v. Phillips
| Decision Date | 07 December 1897 |
| Docket Number | 18,134 |
| Citation | 48 N.E. 626,149 Ind. 552 |
| Parties | The City of Shelbyville v. Phillips |
| Court | Indiana Supreme Court |
Rehearing Denied Feb. 18, 1898.
From the Bartholomew Circuit Court.
Affirmed.
David L. Wilson, for appellant.
K. M Hord, Ed. K. Adams, and Lee F. Wilson, for appellee.
Howard C. J. McCabe, J. Hackney, J., did not Participate in this decision.
On November 8, 1894, appellee was charged before the mayor of the city of Shelbyville with having violated an ordinance of said city, by opening his saloon on November 6, 1894, the day of a general election. Such proceedings were had that the appellee was found guilty of the offense charged, and fined therefor; that an appeal was taken to the circuit court of the county, from which, on change of venue, the case went to the court below; and that on June 20, 1896, there was a finding for the appellee, and judgment entered in his favor. From this judgment the city appeals.
The only question involved in the issues and argument of counsel relates to the validity of the ordinance of the city of Shelbyville, but the question so sought to be presented is not properly saved for our decision, by reason of the condition of the record as brought here upon this appeal.
An effort seems to have been made to try this as an agreed case, under section 562, Burns' R. S. 1894 (553, R. S. 1881). There was an agreed statement of facts, "made out and signed by the parties," as prescribed in that statute. But there was no "affidavit that the controversy is real and the proceedings in good faith," as also required. The court had, therefore, no jurisdiction to determine the case, as so brought. Sharp v. Sharp's Administration, 27 Ind. 507; Manchester v. Dodge, 57 Ind. 584. There was, besides, no exception to the decision or finding of the court, which has often been held necessary in an agreed case. Fisher v. Purdue, 48 Ind. 323; Warrick, etc., Ass'n. v. Hougland, 90 Ind. 115; Pennsylvania Co. v. Niblack, 99 Ind. 149.
As in the case last cited, the case at bar was rather "a trial upon an agreed statement of facts used merely as evidence." This statement of facts is brought into the record by bill of exceptions, but the bill does not state that the facts, as so agreed to, constituted all the evidence given in the cause. There is nothing in the record to show what were the facts upon which the decision rested, and the court may have...
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