109 Mo. App. 171 | Mo. Ct. App. | 1904
Proceedings were instituted against defendant on the twenty-fourth day of April, 1901, on the following complaint filed with the police judge of the plaintiff city and upon which he was tried and convicted, to-wit: “W. R. Loyd, defendant, to city of Tarkio, Missouri — Debtor.
“To the violation of the city ordinance requiring-
Said complaint was signed and sworn to by one E. M. Meek. Upon his conviction, defendant filed affidavit for appeal to the circuit court of the county, but did not enter into the required recognizance prescribed by the statute in such cases.
When the case came up in the circuit court, the plaintiff filed a motion to dismiss defendant’s appeal and affirm the judgment of the police court for the reason that the defendant had failed to file an appeal bond within the time required by law; and had failed to file such bond conditioned for the payment of costs of suit, as required by law and the order of the police court. While this motion was pending, the defendant filed a motion to dismiss the complaint on various grounds, some of which will be particularly noticed hereafter.
On the third day of June, plaintiff’s motion to dismiss the appeal was overruled; and defendant’s motion to dismiss the action was sustained. And on the same day defendant filed his recognizance on his appeal — but it does not appear whether it was filed before or after the motion to dismiss the appeal was overruled. The presumption is, however, that it was before and not afterwards, as that would have been proper — the presumption'always being, in absence of
It is true defendant did not give his recognizance
In his motion to dismiss the complaint defendant assigned the following reasons: because it did not negative the provisions of the ordinance that it was not to apply to owners or other persons who shall sell, solicit or take orders for future delivery in wholesale lots to retail dealers of any wares, goods or merchandise ; and because it fails to except books, charts, maps and stationery as provided by the ordinance. The ordinance reads as follows:
“Whosoever shall go from place to place for the purpose of soliciting or taking orders for future sale or delivery of any goods, wares or merchandise, except' boohs, charts, maps and stationery, is hereby declared to be a mercantile agent. Provided, that this ordinance shall not apply to owners or other persons, who shall sell, solicit or tahe orders for the future delivery in wholesale lots to retail dealers, of any goods, wares or merchandise
We are of the opinion that the objections were well taken and that the action of the court in dismissing plaintiff’s statement was correct. We have italicised the parts of the ordinance containing the exceptions of certain classes or persons from its operations. The complaint does not negative these exceptions. But as it is a negative contained in the ordinance creating tbe offense, it was necessary to aver it in the information and necessary to prove it. State v. Schuerman, 70 Mo. App. 518; State v. Hirsch, 45 Mo. 429; State v. Sparrow, 52 Mo. App. 374; State v. Raymond, 54 Mo. App. 425.
In State v. Bockstruck, 136 Mo. 335, it was held:
It will readily be perceived that this decision is not in conflict with the other cases cited. The ordinance in question, without the negative exceptions, would include within its terms persons engaged in taking orders for future delivery of books, maps, charts, etc., owners who sell to retail dealers, as well as those against whom the ordinance is intended to operate. Consequently, the case does not fall within the rule adopted in the Bockstruck case, supra.
Cause affirmed.