Aderhold v. Mayor of Anniston

HABALSON, J. The charter of city of Anniston as amended, (Acts 1890-91, p. 109, § 3) provides, that in cases of appeal from the recorder, “The proceedings on such appeal shall be in all respects as prescribed by law in cases of appeals from judgments of a justice of the peace in civil cases, except as changed by this section......In case the defendant appears, and judgment is rendered by said court for money, the court must also render judgment against the sureties on his appeal bond, for the amount of such judgment and costs.” Two ordinances of said city, Nos. 102 and 317, were introduced, and are set out in the record. The defendant was arrested, so far as is shown, without affidavit or warrant. He appeared before the recorder, at his office, at the time to which he was summoned, “to answer to the charge oí disorderly conduct.” He pleaded not guilty, was regularly tried on that issue, on evidence introduced on both sides, and was fined and sentenced by the Becorder. He appealed to the City Court of Anniston, in the manner prescribed by the charter, where, as we have seen, the case is required to be tried as appeals in civil cases from justices of the peace are tried. Coming to the City Court, the plaintiff filed a complaint as in civil cases, claiming the amount of the judgment and costs imposed on defendant by the recorder, for violation of said ordinance, No. 317, of said city, averring that the defendant, within twelve months before the 11th of November, 1891, participated in a fight, in violation of said ordinance, for which he Avas duly tried, convicted, and fined by the recorder. The defendant moved to quash the proceedings in the City Court, on the grounds, that the prosecution was commenced Avithout affidavit and warrant, and because two distinct offenses are charged in one. He also moved to strike the complaint from the file, because not filed in thirty days, and demurred to it. The motion to quash was properly overruled. Not having raised these objections in the Becorder’s court, but having there voluntarily appeared to answer the charge, and having pleaded and gone to trial, the defendant waived them, if they existed, and could not raise them for the first time in the City Court, on a motion to qaa,sh.-~-BlanJcenshire v. St,ate, 70 Ala. 10; Staggers v. Washington, 56 Ala. 225; Noles v. Marable, 50 Ala. 366; Miles v. State, 94 Ala. 106; 11 So. Bep. 403. The statute requires such case to be “tried de novo, and according to equity and justice, without re [524] gard to any defect in the summons or other process or proceedings before the justice.” — Code, § 3405; Ordinance 102 of City of Anniston. It was proper to allow the complaint to be filed, at any time before the trial. It charged the defendant with participating in a fight, or affray, and the summons was, to answer for disorderly conduct and fighting. This slight variance was immaterial. Even where imperfections of a graver character exist in the complaint, before the justice, it is competent, where there has been an offence charged, to cure them in the complaint in the appellate court. Williams v. The State, 88 Ala. 82; Blankenshire v. The State, supra. There was no error in refusing to strike out the complaint, and in overruling the demurrer to it. The evidence in the case made out a clear case of guilt against the defendant. Affirmed.