Jenkins v. City of Cheyenne

By the Court, Fisher, C. J.: The first error complained of was the transferring this cause from the criminal to the civil docket. We do not see how the rights of the plaintiff in error could be seriously invaded by the order of the district court in changing the case from the criminal docket, and where no injury results from the action of the court, errors are to be overlooked. But apart from this there was no error, as will be fully seen by reference to the eighth and ninth sections of chapter 75 of the laws of 1869, and are as follows: “.See. 8. A criminal action is one prosecuted by the territory as a party against a person charged with a public offense, for the punishment thereof.” Sec. 9. “Every other is a civil action.” This, to a reasonable mind, is enough, but we may go a little further, and say that the mode usually resorted to for the recovery of penalties for the violation of municipal ordinances is by civil actions. There are many both common law and statutory offenses which are quasi criminal actions, and which incur criminal consequences, which are nevertheless to be proceeded in as civil actions. The second error complained of is the striking off of the appeal or rather dismissing the appeal on the ground of the insufficiency of the undertaking. A simple reference to the requirements of section 67 of the justice code of 1871 which requires an undertaking .that the appellant will prosecute his (or her) appeal to effect. That if judgment is rendered against him (or her) on the appeal, or his (or her) appeal be dismissed, he will satisfy the judgment and costs; that the appeal has not been taken for delay, but that it is taken in good faith, believing that injustice has been done, etc.; [292] and it is required that the surety must be a resident of the county and a property holder. All this should appear affirmatively. And by another provision it is required that the surety must make an affidavit to his sufficiency. This record fails to show that any of these requirements were complied with, consequently no such proceedings were had as would justify the court in overruling the motion to dismiss the appeal. The third error assigned is so involved in what has already been said, that we do not deem it necessary to pass upon it. The proceedings of the district court are affirmed.