Culbertson v. City of Galena ( 1845 )

The Opinion of the Court was delivered by

Purple, J.^*

The appellee sued the appellant before R. F. Barry, who acted as a justice of the peace of Jo Daviess county. The cause was removed by appeal to the Circuit Court. The appellant appeared in the Circuit Court and moved to dismiss the suit, and reverse the judgment of the justice upon an affidavit of William C. Bostwick, clerk of the Co.unty Commissioners’ Court of said county, showing that Barry had pot filed a bond with security previous to his entering upon the duties of his office. The Court overruled the motion.

From the bill of exceptions, it appears that all the evidence given on the trial was, that in October, A. D. 1843, appellant sold on the wharf in the city of Galena a barrel of whiskey, and that he had no license to vend or retail merchandize; that then the counsel for the appellee read the law to the jury. The jury found a verdict against the appellant for twenty dollars. Appellant moved for a new trial and in arrest of judgment, which motions were overruled and exceptions taken.

These decisions are assigned for error.

The Court decided correctly in overruling the motion to dismiss the suit upon the ground that Barry, who assumed to act as such, was not a legal justice of the peace. In such a proceeding as the present, it is sufficient that he acts as such, and his right to exercise the duties of the office can not be, in the manner proposed, collaterally examined.

The evidence, however, contained in the bill of exceptions did not warrant the verdict of the jury, nor the judgment of the Court thereon.

It is probable, that there is some ordinance of the city of Galena prohibiting persons, under penalties, from selling merchandize within the city without license, which was the foundation of this action, and it may be true, that this ordinance was read in evidence before the jury on the trial, and was accidentally omitted to have been made a part of the bill of exceptions. The Court is, however, bound to decide questions as they are presented in the record. We can find no evidence to sustain this judgment.

The judgment of the Circuit Court is reversed, and the cause remanded with directions to the Circuit Court to award a venire de novo.

Judgment reversed.

* Wilson, C. J., and Justices Lockwood and Young did not sit in this case.