5 Indian Terr. 251 | Ct. App. Ind. Terr. | 1904
The appellant was arrested for being drunk and disorderly in violation of an ordinance of the incorporated town of Wilburton. He was fined, after trial, $10 and costs, and sought to bring the ease to the United States District Court for review. The attorney for appellee moved the court to dismiss the appeal for the reason no affidavit of appeal was filed in the court below. Counsel for appellant contends that the prosecution for the violation of an ordinance of an incorporated town is a criminal and not a civil suit, and hence no affidavit for appeal was necessary. The court dismissed the appeal which was attempted to be taken, and appellant brings the cause here for review.
The first question presented is as to the character of the proceeding — civil or criminal. The great weight of authority in this country is to the effect that all prosecutions for the violation of ordinances are civil suits. “The best authority as to the 'character of an action under a municipal ordinance is found in those jurisdictions in which, following the common law, the courts regard the action as purely civil.” Ency. of Pleading & Practice, vol. 15, p. 413. “The weight of judicial authority declares that the prosecution is in the nature of a civil action for the recovery of a debt.” McQuillin, Municipal Ordinances, *§ 304. The Appellate Court of Illinois had occasion to pass upon this question recently in the appeal of the city of Chicago. One
Counsel for appellant in the District Court moved the court for leave to file an affidavit under the statute. This the court denied. The court was right. The affidavit must be filed “with the justice.”
The appellant then filed the following motion: “Comes now the defendant, Robert Fortune, and moves the court for a rule on J. W. Wade, mayor of the town of Wilburton, Indian Territory, before whom this cause was tried, to complete and correct his record in this matter, and certify the same up to this court, in the following particulars, to wit: (1) To attach to his record the “motion for a change of venue made and filed by the defendant. (2) To attach to his record the bail bond of the defendant, given for his appearance before the mayor. (3) That, if .the judgment certified to this court was signed by the said mayor, then that he cause his certified copy of the judgment to show that fact; if it was not signed by said mayor, that'he sign the same, and amend his certified judgment by attaching his signature to the samé. (4) To show whether or not an appeal was prayed and allowed, and whether or not an affidavit was made for an appeal;' if so, that the same be attached to his certified record; the record being silent as'to the prayer and affidavit for appeal. (5) That if.his record does not show a prayer for an appeal nor affidavit of appeal, but either was made before him,
The court is of opinion there is no error in the record, and . the judgment is affirmed.