240 N.W. 496 | S.D. | 1932
This is an appeal from an order of the circuit court of Kingsbury county reversing a judgment of the city justice of the peace of the city of Arlington. Two cases are involved, and are by stipulation here consolidated in one appeal. The defendant in each case was charged with violating the provisions of Ordinance No. 97 of the City of Arlington. The criminal complaint did not set forth the ordinance except by number. The actions were commenced before the city justice; demurrers were filed to each complaint and the demurrers sustained. The plaintiff, city, appealed to the circuit court upon questions of law only. The justice made a settled statement of the cases and transmitted it, *445 together with the notices of appeal and certified copies of his docket, to the clerk of the circuit court. The statement of the justice as transmitted did not set forth the said Ordinance No. 97.
The appellant here contends that the circuit court, acting in the capacity of an appellate court only, could not take judicial notice of said Ordinance No. 97, and the ordinance not being otherwise before the court, the decision of the justice must be sustained.
[1, 2] It is apparent from the above statement of the facts that the ordinance was not before the circuit court except to the extent that that court would take judicial notice of it. Respondent relies to some extent upon the fact that the original statement of the justice did contain the ordinance, but upon motion of the defendant the original statement was changed and the ordinance excluded. We are of the opinion that this fact is immaterial, because the statement as finally prepared and transmitted (and this was all that was before the circuit court) did not set forth the ordinance. If the statement of the justice as finally prepared was deemed defective by the respondent, his remedy was a motion before the circuit court as provided in section 4450, Rev. Code 1919.
[3, 4] This court in the case of City of Milbank v. Cronlokken,
[5] The appeal from the justice to the circuit court being upon questions of law only, we are of the opinion that the circuit court acting only as a reviewing court could not take judicial notice of the said Ordinance No. 97. This holding has support in the decided cases. See Steiner v. State,
[6] The demurrers in justice court having challenged the validity and constitutionality of said Ordinance No. 97, and the said ordinance not being before the circuit court and not being a subject of judicial notice by that court, it was error for the circuit court to reverse the decision of the justice sustaining the demurrers.
The order appealed from is reversed, with directions to enter an order sustaining the judgments of the justice court.
CAMPBELL, P.J., and POLLEY, ROBERTS, and WARREN, JJ., concur. *447