City of Creston v. Kessler

Evans, J.

On June 24, 1925, the defendant, Kessler, was arrested on a charge of intoxication, whereby the ordinance of the plaintiff city had been violated. On June 25th, he was brought before the mayor, and entered a plea guilty, and was sentenced to imprisonment i-11 ^he comity jail £°r thirty days. On June 26th, counsel appeared for him, and purported to take an appeal to the district court. An appeal bond was presented, and approved by the mayor, and a release of the prisoner was ordered by such mayor. The case having been duly docketed in the district court and the transcript of the mayor being filed therein, the plaintiff filed a motion to dismiss the appeal for want of jurisdiction. The claim of want of jurisdiction was predicated upon the transcript, which failed to disclose that any appeal had been taken. The transcript also affirmatively stated that ‘ ‘ no formal written notice of appeal was given. ’ ’ This motion was resisted by tbe defendant, and tbe resistance was supported by tbe affidavit of his counsel, to tbe effect that be bad delivered to tbe mayor a written notice of appeal on June 26th, and presented an appeal bond, which was approved by tbe mayor, and whereby tbe mayor at once ordered tbe release of tbe defendant. Tbe city did not controvert this affidavit by any counter-affidavit by tbe mayor. Thereupon, tbe court assumed jurisdiction, and brought tbe case to a bearing in tbe court. At such bearing, tbe defendant again entered a plea of guilty. Judgment was entered against him, imposing a fine of $25 and costs. It is from this judgment that tbe plaintiff appeals. Tbe judgment thus appealed from affected in no manner any right of tbe plaintiff’s. Tbe judgment was in no sense adverse to it. It has no grievance, in a legal sense. If tbe district court in fact entered an adverse judgment against tbe defendant, only tbe defendant himself could complain of it. Tbe plaintiff has no grievance, and therefore no standing in this appeal.

We may say further that tbe district court was authorized to take account of tbe affidavit filed on behalf of defendant and to determine tbe truth of tbe matter. Nor was it necessary that ^ should order a formal correction by tbe jus-^ice his transcript, as a condition precedent to the jurisdiction of such district court. In such a case, Section 13593, Code of 1924, provides:

“Tbe court shall have fuE power to compel tbe correction by said justice of any error made apparent in his transcript, statement of testimony, or in any papers returned by him, or may make tbe necessary correction itself, and, on tbe papers, may affirm or reverse tbe judgment of tbe justice, or render such judgment as be should have done.”

Tbe appeal is dismissed. — Appeal dismissed.

De Graff, C. J., and Albert and MorliNq, JJ., concur.