Everts v. Town of Bixby

Williams, J. (after stating the facts as above). The plaintiff in error makes five specifications of error, or assignments as to why the judgment of the lower court should be reversed; but we will consider them all together. The first three contentions, made in support of said speci'fications, are to the effect that the action was a criminal prosecution, and that neither the said mayor’s nor the district court had any jurisdiction. But that question is neither properly raised here, nor is it essential to the determination of this appeal'to pass on same. However, the case of Fortune v. Incorporated Town of Wilburton, 5 Ind. T. 252, 82 S. W. 738, and Id., 142 Fed. 114, 73 C. C. A. 338, 4 L. R. A. (N. S.) 782, a controlling case, has expressly decided that a prosecution for the violation of a town ordinance is a civil, and not a criminal, action. It is further contended that, if it was a civil proceeding, no ■•summons as required by law was served on the plaintiff in error. In the case of Hodges et al. v. Frazier, 31 Ark. 60, the court said: “The defendants appealed to this court, and here argue that, Chick being a nonresident, no affidavit of that fact appears to .authorize a warning order against him. Whether such affidavit was lost with the original papers does not appear. It is not ma *179 terial. Chick having appealed to this court from the original decree which was reversed, he thereby became a party to the proceeding, and must follow the cause to its conclusion, or take the consequences.” In the ease of Farmers’ National Bank of Vinita, Plaintiff in Error, v. First National Bank of Pryor Creek. Defendant in Error (decided bjr this court at this term),ante, p. 108, 103 Pac. 685, it was held that, the United States Commissioner exercising jurisdiction of a justice of the peace by virtue of certain statutes of Arkansas extended to, and put in force in, the Indian Territory (Act Cong. May 2, 1890, c. 182, 26 Stat. 98 Ind. T. Ann. St. 1899, p. 13 § 39; Act Corig. March 1, 1895, e. 14.5, 28 Stat. 695, Ind. T. Ann. St. 1899, p. 17, § 48), having jurisdiction of the subject-matter, and having rendered judgment without having jurisdiction of the person of the defendant, when such defendant appeared and filed an affidavit for appeal to the United States Court for the Northern District of the Indian Territory, at Vinita, and superseded the judgment, it thereby entered its appearance, and made itself a party to the proceeding, and could not thereafter be heard to complain of the judgment rendered in the United States Court at Vinita. As to the contention that no complaint had been filed in the mayor’s court, and therefore no jurisdiction was acquired of said action either by the mayor’s or district court, the record recites that a complant was filed on April 15, 1907, charging defendant with not having paid an occupation or license tax, in violation of' Ordinance No. 5 of the incorporated town of Bixby, and such recital will prevail on review in this court over the verified statement of the motion of the plaintiff in error, otherwise unsupported. As to the further contention that the manager of a store is not personally liable for an occupation tax for such concern, and that that was the capacity in which the defendant was prosecuted and fined in said case, that question is not properly before this court. The only question here under the record is whether or not the lower court erred in dismissing the appeal, and not sustaining *180 the motion to set aside such order.' The affidavit for appeal, as it appears in the record, whilst it is signed by the plaintiff in error, does not appear to have ever been sworn to before any officer, as there is no jurat attached thereto, nor does it show that it was filed within 30 days after the rendition of said judgment. That of itself was sufficient to justify the court in dismissing the appeal. In addition to that it appears that the transcript was not filed by the first dajr of the next term of the court, as required by the statute (Mansf. Dig. § 4139, Ind. T. Ann. St. 1899, § 2819), and it has been held in numerous cases by the Supreme Court of Arkansas, which control in the case at bar, that on such failure the circuit court has the discretion to affirm the judgment of the lower court or dismiss the appeal; and, unless there has been an abuse of such discretion, same would not be disturbed on appeal. Smith et al. v. Allen, 31 Ark. 270; McGhee v. Carroll & Jones, 31 Ark. 550; Hughes v. Wheat, 32 Ark. 392. In the case of Brown et al v. Gorman, 7 Ind. T. 747, 104 S. W. 1163, the foregoing rule was followed by the United States Court of Appeals for the Indian Territory, wherein the court said: “Appellant argues from this section that it was the duty of the justice (mayor) to send up the transcript, and that, if the mayor failed to do his duty in this respect, the appellant should not be made to suffer, on account of such negligence. But the Supreme Court of Arkansas has held that it is the duty of the appellant to see that the transcript is filed as required; and, if he fails to do so, the circuit court may, in its discretion, dismiss or affirm for failure to prosecute the appeal.” It is further urged that the failure of the appellant co be present did not justify the court in dismissing her appeal for want of prosecution, or give the court any different or greater powers or jurisdiction than it would have had if she had been personally present in court, in which event it would have been necessary for the case to have been tried de novo; and further, that her failure to be present was not a failure to prosecute her appeal within the meaning of the law. In this instance she had not only failed to *181 file the transcript with the clerk of the court, as required by law, but when the ease was reached on the regular call of the docket, she failed to be present to proceed with the trial of the same. It is insisted by the plaintiff in error, in her motion to set aside the judgment of the lower court, that the defendant in error had waived the laches in not filing the transcript in time. On examination of the record we find that in the motion of plaintiff in error to set aside said order dismissing her appeal it is contended that the attorney for defendant in error wrote her attorney the day before the appeal was dismissed as follows: “This case is subject to call now for trial. There are 4 cases for trial set before it. This case may not be called before 9 o’clock a. m. Thursday, July 18, 1907. There are no motions on file nor will any be filed by the appellee on account of failure of appellant to file transcript.” The bill of exception-does not show that there was any proof made on that point other than the statements made in the motion to set aside the order. Section 2832, Ind. T. Ann. St. 1899 (Mans. Dig. § 4152; Sand. & H. Dig. § 4448; Gannt’s Dig. § 3838; Kirby’s Dig. §■ 4683), provides: “If the party appealing moves to dismiss in the circuit court, or fails to prosecute his appeal, it shall be at the option of the appellee either to proceed to trial on the appeal or have judgment rendered for the amount of the original judgment and costs where it was in his favor or in bar of the original judgment where it was against him.” In this case the defendant in error did not move to dismiss in the district court until the plaintiff in error failed to appear. She failed to prosecute her appeal, not only by failing to file the transcript in time, as required by law, but also to be present in court to prosecute same. The statute provides that in such event the appellee may have judgment rendered for the amount of the original judgment and costs, where it was in his favor. The motion to set aside the order, being overruled by the court, involved the exercise of a discretion, and, where the record fails to affirma *182 tively show an abuse of such, the judgment of the lower court-should not be disturbed. Failing to find any reversible error in the record, the judgment of the lower court is affirmed. All the Justices concur.