Worthington v. City of Jasper

• Decision Date: 23 November 1916
• Docket Number: 6 Div. 391
• Citation: 73 So. 116,197 Ala. 589
• Parties: WORTHINGTON v. CITY OF JASPER.
• Court: Alabama Supreme Court

73 So. 116

197 Ala. 589

WORTHINGTON v. CITY OF JASPER.

6 Div. 391

Supreme Court of Alabama

November 23, 1916

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

W Worthington appeals from a conviction in the circuit court on a trial de novo upon his appeal from a conviction, in the recorder's court of the city of Jasper for the violation of an ordinance, and he appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. Reversed and remanded.

Ray &amp Cooner, of Jasper, for appellant.

Charles R. Wiggins, of Jasper, for appellee.

McCLELLAN J.

This proceeding was begun before the recorder of the municipality of Jasper, and sought to charge the defendant (appellant) with the violation of an ordinance approved June 16, 1913 which ordinance only prescribed a penalty against the tenant or owner of a house or building for keeping or maintaining any surface closet, etc., following the requirement that under certain conditions defined, tenants or owners should connect surface closets, etc., with sanitary sewers. The affidavit on which the defendant was tried and convicted in the recorder's court was not then assailed in any way. The defendant took an appeal to the circuit court, where the trial was de novo. Code, §§ 1451, 6744. In the circuit court counsel for the city filed a statement undertaking to charge an offense under the ordinance.

The original affidavit on which defendant was tried and convicted in the recorder's court charged no offense within the penalty of the ordinance; but, since no objection was there taken by the defendant to the affidavit, he could not avail of its deficiency in the circuit court where, as stated, the trial was de novo. Turner v. Town of Lineville, 2 Ala.App. 454, 56 So. 603.

But when the "statement" became in the circuit court the source of the charge on which he was to be tried, the defendant had a right to question its sufficiency by appropriate methods. This he did both by motion and by demurrer to the "statement." The "statement," in its substantial parts, was thus framed:

"*** That within 60 days before the commencement of this prosecution and within the corporate limits of the city of Jasper, Ala., the said W. Worthington kept or maintained a surface closet or urinal on premises owned by or under the control of said W. Worthington, said premises abutting the street or alley in which the sanitary sewer was laid, after he had been notified for more than 60 days by the mayor of Jasper to connect the closet or urinal on said premises to said sanitary

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