Hasty v. City of Huntington

Howk, J. — In this case the appellant Hasty, the defendant below, has here assigned as errors the decisions of the circuit court in overruling (1) his demurrer to the complaint, (2) his motion for a new trial, and (3) his motion in arrest of judgment. The first and third of these alleged errors may properly be considered together, as they each call in question the sufficiency of appellee’s complaint, the first before and the second after the trial and finding thereon. The suit was commenced before the mayor of the city of Huntington, and was taken by appeal to the court below. In its complaint the city of Huntington alleged that appellant, on or about the 17th day of April, 1883, at the city and county of Huntington, then .and there violated section three of an ordinance of such citv, passed by the common council thereof on the 6th day of cf March, 1882, by unlawfully erecting a building or a structure in the third ward of such city, without first making application to the clerk of the board of public improvements of such city, as required by such section. Wherefore, etc. In the thirty-second clause of section 3106, R. S. 1881, in force since March 10th, 1873, power is conferred upon the common council of a city incorporated, as the city of Huntington was, under the general law of this State for the incorporation of cities, “ To organize a board of public improvements, and empower such board to grant permits to build houses or additions thereto.” The validity of the city ordinance, or of the section thereof, for the violation of which the appellant was prosecuted in the case at bar, is in no man [542] ner questioned in the brief of his counsel, and, therefore, can hardly be said to be involved in this appeal. For this reason it might well be held, as it seems to us, that this court has no-jurisdiction of this appeal. Because, as the amount in controversy, exclusive of interest and costs, is only one dollar, and as the cause originated before the mayor of a city, and does not involve the validity of a city ordinance, the appeal is not authorized by the provisions of section 632, R. S. 1881, regulating appeals to this court. Passing this point, however, as it is not made by appellee’s counsel, we may say that the ordinance of the city of Huntington, and the section thereof, for the violation of which appellant is prosecuted in this cause, were held to be valid by this court in the well considered case of Baumgartner v. Hasty, 100 Ind. 575 (50 Am. R. 830), and we adhere to that decision. In regard to the sufficiency of appellee’s complaint, it will suffice to say that such complaint conformed to the requirements of section 3066, R. S. 1881, in relation thereto, that it informed appellant of the nature of the cause of action, and was so explicit that a judgment thereon could be used as a bar to another suit for the same cause of action. In actions originating before the mayor of a city or a justice of the peace, we have often held that such a complaint was sufficient. Hewett v. Jenkins, 60 Ind. 110; Beineke v. Wurgler, 77 Ind. 468; Western Union Tel. Co. v. Huff, 102 Ind. 535. The court did not err, we think, in overruling either the demurrer to the complaint or the motion in arrest of judgment. In appellant’s motion for a new trial the only cause assigned therefor is that the finding of the court was contrary to law. This cause for a new trial did not below, nor does it here, call in question the sufficiency of the evidence to sustain the finding. Yet that is the only question discussed by appellant’s counsel in considering the alleged error of the court in overruling the motion for a new trial. The question is not presented here for consideration or decision. We [543] fail to see, and counsel have failed to point out, wherein the finding of the court was contrary to law. Filed March 6, 1886. The motion for a new trial was correctly overruled. The judgment is affirmed, with costs.