201 Mo. 396 | Mo. | 1907
A cause entitled, The City of St. Louis vs. Edward Butler and Empire Circuit Company, a corporation, originated in the First District Police Court of the city of St. Louis, by statement or information in language, as follows:
“Edward Butler and
Empire Circuit Company,
a corporation, To the City of St. Louis, Dr.
“To five hundred dollars for the violation of an ordinance of said city, entitled, ‘An Ordinance in revision of the General Ordinances of the City of St. Louis,’ being ordinance number 19991, section 1157, as amended by ordinance number 205291, approved December 11, 1901, and section 1184, approved April 3, 1900.
“In this to-wit: In the city of St. Louis, and State of Missouri, on the 1st day of August, 1902, and on divers other days and times prior thereto, the said Edward Butler and Empire Circuit Company, a corporation, did then and there at and in front of premises at N. E. Cor. Seventh and Walnut streets maintain, set up and cause to be set up a certain sign, sign box and other fixture, to-wit, a sign extending over and upon a public sidewalk more than eighteen inches from the building line and inside of said sidewalk.
‘ ‘ Contrary to the ordinance in such case made and provided.
“On information of Chief of Police.
“P. P. Taylor,
“City Attorney of the City of St. Louis.”
Upon application of defendant, Edward Butler, change of venue was taken to the police court for the district south of Arsenal street. Later, after the change of venue, and on the same day, defendants filed both a lengthy demurrer and answer, each of which raises practically the same defenses. It is unnecessary to set them out in detail, but such portions of them as
It appears that trial was bad in tbis cause in tbe police court, where upon bearing tbe evidence tbe defendants were discharged. Tbe plaintiff thereupon took an appeal to tbe St. Louis Court of Criminal Correction, where later a trial was bad before Hon. E. M. Hughes, then a circuit judge of tbe Eleventh Judicial Circuit, which likewise resulted in a discharge of defendants. Motion for new trial being overruled, tbe plaintiff, in tbe time allowed by tbe court, filed its bill of exceptions. Tbe trial last mentioned was bad May 25,1903, and bill of . exceptions filed June 4,1903, within tbe ten days allowed by tbe court for filing tbe same.
On November 10,1903, the plaintiff sued out a writ of error in tbis court directed to tbe Court of Criminal Correction of tbe city of St. Louis, which said writ directed tbe court to send up a perfect transcript of the record “in a certain cause lately pending in tbe St. Louis Court of Criminal Correction wherein city of St. Louis was plaintiff and tbe Empire Theatre Company was defendant.” Tbis writ was issued in strict accordance with the terms of tbe application made for tbe writ, now on file in tbe clerk’s office. April 1, 1904, return to tbe writ was made, and filed in tbis court April 26,1904. Tbe record returned is one in a case entitled, “City of St. Louis v. Edward Butler and Empire Circuit Company, a corporation.” No record was called for in a case of tbe “City of St. Louis against Edward Butler and Empire Circuit Company, a corporation.” Tbe writ of error sued out by plaintiff in error called for a record in a case of “City of St. Louis v. Empire Theatre Company.” Edward Butler was left out of tbe writ, and in nowise mentioned. Instead of “Empire Circuit Company, a corporation,” we have “Empire Theatre Company,” which may be a co-partnership or corporation.
The writ sued out by plaintiff was in the case of “ City of St. Louis v. Empire Theatre Company. ’ ’ Can we say the two mentioned cases are the same? Had the writ of error said, “Edward Butler et al.,” it would have been different. Upon the face of the record here we issue a writ of error in one case, and the record in another is returned and submitted to us. What can we do with it? Writs of error are different from appeals. An appeal is the continuation of an old action. “A writ of error, however, is considered a new action and that it is a new action has been repeatedly and often held by many courts.” [Macklin v. Allenberg, 100 Mo. l. c. 343, and cases cited.] So that we have a new case here styied one way, and the record of the case from the court below styled another way, and the case submitted to us for determination. That the two titles above set out would indicate two different causes goes without question. Shall we have one case submitted to us and then try and determine another, the record of which the plaintiff by its writ of error never asked to be brought here? We think not. It thus appears that there is no record here in the cause mentioned in the writ of error, and for that reason said writ should be dismissed. It is so ordered..