The Town of Whiting v. Doob
| Decision Date | 02 February 1899 |
| Docket Number | 18,593 |
| Parties | The Town of Whiting v. Doob |
| Court | Indiana Supreme Court |
From the Lake Circuit Court.
Affirmed.
Wartman & Miller and John G. Erdlitz, for appellant.
F. N Gavit, for appellee.
The appellee was charged with the violation of an ordinance of the town of Whiting in riding a bicycle upon a sidewalk of that corporation. The action was commenced by filing a verified complaint before a justice of the peace of Lake county. On the day of the trial, and before any other proceedings were had, an amended complaint was filed. Appellee thereupon filed a demurrer, which referred to this pleading as "the complaint." The demurrer was sustained, and there was judgment for the appellee. An appeal to the Lake Circuit Court was taken by the town, and there as is shown by the record, "the defendant renews his demurrer herein." The court sustained the demurrer, and the appellant refusing to amend or plead further, judgment was rendered for appellee. The town of Whiting appealed to this court, and the error assigned is the ruling of the court on the demurrer.
The objection is made by counsel for appellee that the demurrer was sustained, not to the complaint, but to the amended complaint, and, therefore, that no question is presented by the assignment of errors. We think otherwise. The amended complaint superseded the complaint first filed, so that it ceased to be a part of the record. Kirkpatrick v. Holman, 25 Ind. 293. The pleading last filed by appellant became the complaint in the cause, and was the only pleading on file to which a demurrer could be addressed.
The ordinance under which this proceeding was taken reads thus:--
Section 54 of this ordinance declares the penalty for a violation of its provisions.
The validity of the ordinance is assailed on the ground that riding or driving upon the sidewalks of any town in this State is made a public offense against the State, for which punishment is prescribed, and that such offense cannot be made punishable by an ordinance of any incorporated town or city.
The sections of the statutes to be considered are these: "It shall be unlawful for any person to ride or drive upon the brick, stone, plank, or gravel sidewalk of any town or village, or upon any similar sidewalk for the use of foot passengers by the side of any public highway in this State, unless in the necessary act of crossing the same." Acts 1867, p. 194, section 4398 Burns 1894, section 3361 Horner 1897.
"Whenever any act is made a public offense against the State, by any statute, and the punishment prescribed therefor, such act shall not be made punishable by any ordinance of any incorporated city or town; and any ordinance to such effect shall be null and void, and all prosecutions for any such public offense as may be within the jurisdiction of the authorities of such incorporated cities or towns, by and before such authorities, shall be had under the State law only." Section 1640 R. S. 1881, section 1709 Burns 1894.
Counsel for appellant contend that an act authorizing boards of town trustees to prohibit the encumbering of the sidewalks of such towns, and riding or driving thereon, and empowering such boards to carry out the provisions of the act by by-laws ordinances, and regulations, approved April 10, 1885, repeals, by implication, so much of the act of 1881, supra, as prohibits cities and towns from enforcing ordinances against acts which...
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