State v. Miller

On Motion to Dismiss. The opinion of the Court ivas delivered by Bermudez, C. J. 'Hie plaintiffs and appellees complain that they have not been cited to answer tlie appeal and move for its dismissal. An inspection of the record shows that the defendant ivas arrested, tried and fined, under a prosecution for the violation of a police jury ordinance. it- is, therefore, apparent that the plaintiffs have impressed upon the proceeding the character of a criminal prosecution. rt is possible that the defendant should not- have been dealt with in that form; but at this stage we could not so hold. Surely, after giving to the proceeding the form of a criminal prosecution, the plaintiffs cannot he, heal’d to change its character and claim that, it is a civil proceeding in order to oust the defendant of the appeal which he has taken from the judgment against him, though true it may be, that the defendant has not, asked that the plaintiffs be cited to answer the appeal, and they were not cited to do so. The appeal could be dismissed for want of citation to the plain-lifts solely if the prosecution was civil in character; but this we cannot presently decide without looking to the pleadings and the merits thereof, which can only be done when the motion to dismiss is overruled. If the proceeding he, as it is in appearance, criminal in form and character, of course no citation would be required to the. plaintiffs to notify them of the appeal. The motion to dismiss is denied.