City of Ottumwa v. Schaub

52 Iowa 515 | Iowa | 1879

Day, J.

i. practice: change of _ diction. — I. It was held by this court, in Fvneh, v. Marvin, 46 Iowa, 384, that upon proper application a change of venue should be granted from the court of a mayor to that of a justice of the peace. But upon the filing of a motion for a change of venue the mayor does not lose his jurisdiction over the cause. If the motion is overruled, the ruling is simply erroneous. The judgment subsequently rendered is'not void for want of jurisdiction. It follows that upon the appeal of this cause to the District Court that court acquired jurisdiction, and that the motion to dismiss the appeal was properly overnxled.

2__. ap. peal-II. The motion to remand the cause to the mayor for an order setting aside the judgment and gi’anting a change of venue was properly overxmled. This proceeding is in the nature of a criminal action. An appeal to the District’Court brings up the cause for trial anew. An appeal cannot operate as a writ of error. Code, sections 506 and 4702.

3. license: municipal °i: corporation, III. The demurrer assails the validity of the ordinance under which the defendant is prosecuted. The ordinance provides for licensing the sale of beer, wine, or °^er liquors the sale of which is not prohibited statute, and that a person convicted of violating certain of its provisions shall be fined not less than five nor more than twenty dollars, or imprisoned not more than thirty days, and that his license shall be forfeited. It is insisted that the city has no authority to forfeit a license for the violation of the ordinance under which the license was granted. This point was ruled adversely to the defendant in Herber v. Baugh, 43 Iowa, 514.

4. evidence: tificatión. IY. It is claimed that the court erred in admitting in evidence a book claimed to be the ordinance book of Ottumwa. When the book was offered the defendant objected that it had not been shown by proper testimony that it was the ordinance book of the city of Ottumwa. A policeman, familiar with the book, testified that it was the ordinance book, and that the signature to the ordinance in question was that of the mayor. There was no error in admitting the book.

Y. It is insisted that the judgment of the court is contrary to the law and the evidence, in fehat the evidence utterly fails to show a criminal intent, or a substantial and willful violation of the ordinance. In our opinion the evidence sustains the judgment of the court.

Aeeirmed.