Newcome v. Wiggins, Receiver, et al.

of the firm are fully paid. For these reasons, we think the appellant was not entitled to any part of said fund.

The appellant also insists that, if the facts stated do not entitle her to a judgment for a portion of the fund, the complaint was good as an application to set aside the judgment obtained by the receiver against her, under section 99 of the code. The latter part of that section reads thus: "The court may also in its discretion allow a party to file his pleadings after the time limited therefor; and shall relieve a party from a judgment taken against him, through his mistake, inadvertence, surprise or excusable neglect, and supply an omission in any proceedings on complaint or motion filed within two years."

The appellee insists that the complaint is not sufficient for such purpose, for the following reasons:

1st. The complaint was not filed within two years after the rendition of the judgment;

2d. The complaint is not verified; and,

3d. The action is not between the same persons who were parties to the action in which the judgment was rendered.

The first objection is not true in point of fact. This suit was commenced on the 15th day of November, 1880, and the judgment was rendered in June, 1879. The complaint was filed in time.

The second objection can not be sustained, as the statute does not require the complaint to be verified. We have been referred to Buck v. Havens, 40 Ind. 221, Lake v. Jones, 49 Ind. 297, Nord v. Marty, 56 Ind. 531, and Bristor v. Galvin, 62 Ind. 352, as settling the practice, but none of them hold that the complaint must be verified. In Buck v. Havens, it was said that "The practice very justly requires the party who seeks to be released from a judgment to show that he has a meritorious cause of action or defence, as the case may be, which is involved in the judgment from which he seeks to be relieved, and this should be supported by his affidavit." This merely requires a showing, and this showing may be by verified complaint or by a separate affidavit. However made, its

Newcome v. Wiggins, Receiver, et al.

office is to prove the averment, and not to render it sufficient. Manifestly, a complaint is as good without as with a verification, unless the statute requires it. If an unverified complaint is supported by an affidavit upon the hearing, this is equivalent to a verification. This need not be done, if the opposite party admits that the facts averred are true. This he does by his demurrer; and "This,” in the language of this court in Nord v. Marty, supra," was tantamount, in our opinion, to a submission of the cause to the court below for a hearing on the facts set out in the verified complaint." No showing was necessary.

The objection, that the action is not between the persons who were parties to the judgment, is equally untenable. The statute does not require it in terms, and, if it could be so construed, the failure to demur to the complaint for defect of parties, naming them, was a waiver of the objection. Marks v. The I., B. & W. R. W. Co., 38 Ind. 440; Durham v. Bischof, 47 Ind. 211.

It is further insisted that the judgment should not be set aside, as it does not appear that the appellant can avoid in any way the judgment rendered against her in the proceeding instituted by her husband, and for that reason she will be unable to make any defence to the action brought by the receiver. This is assuming as true what the latter avers. This we can not do, especially since the appellant alleges that she was not summoned, nor did she appear or authorize any one to appear for her, and that no judgment was rendered against her in such proceeding. Again, it appears from the record that only a small portion of the land embraced in the receiver's complaint was included in the proceedings of the surviving partner, and as to the excess the appellant may make a defence. However this may be, the complaint avers a meritorious defence, and this is sufficient.

It is not claimed that the facts averred do not show "excusable negligence," and we think they clearly show that the judgment was thus taken. Hunter v. Francis, 56 Ind. 460; Nord v. Marty, 56 Ind. 531.

Jett v. City of Richmond.

As the complaint was sufficient under section 99, the demurrer by the receiver was improperly sustained, for which the judgment should be reversed.

PER CURIAM.-It is therefore ordered, upon the foregoing opinion, that the judgment be, and it is hereby, in all things reversed as to the receiver, and affirmed as to the other appellees, with instructions to overrule the demurrer of the former, to apportion the costs, and for further proceedings.

No. 9877.

JETT v. CITY OF RICHMOND.

CONSTITUTIONAL LAW.-Cities and Towns.-Section 1640, R. S. 1881, which forbids cities and towns from punishing by ordinance any act which is a public offence by statute, is constitutional. If not embraced in the subject expressed in the title of the act of which it forms a part, it is at least properly connected with that subject.

From the Wayne Circuit Court.

A. C. Lindemuth, for appellant.

W. D. Foulke and J. L. Rupe, for appellee.

WORDEN, J.-The appellant was prosecuted by the city before the mayor of Richmond, for a violation of a city ordinance, passed in 1870, of the following tenor, viz. :

"If any person shall appear in any public part of the city, or in any place of public resort or amusement therein, or within two miles thereof, in a state of intoxication, every such person so offending shall, on conviction before the mayor, be fined in any sum not less than $1 nor more than $25."

The mayor sustained a demurrer to the complaint and rendered judgment for the defendant, and the city appealed to the circuit court, where a demurrer to the complaint was again filed for want of sufficient facts, among other things, and

Jett v. City of Richmond.

overruled. Exception; plea not guilty; trial by the court; finding and judgment for the plaintiff.

The appellant has assigned error upon the overruling of the demurrer to the complaint.

The question involved depends upon the provisions of the Revised Statutes of 1881.

In the "act concerning public offences and their punishment," is found the following provision, viz.:

"Whoever is found in any public place in a state of intoxication shall be fined any amount not exceeding $5; and, upon a second conviction for such offence, he shall be fined not more than $25; and upon a third conviction for such offence, he shall be fined not more than $100, may be imprisoned in the county jail not more than thirty days nor less than five. days, and disfranchised and rendered incapable of holding any office of trust or profit for any determinate period." R. S. 1881, section 2091.

In the act prescribing the mode of procedure in criminal cases, entitled "An act concerning proceedings in criminal cases," the following provision is found, viz.:

"Whenever any act is made a public offence against the State by any statute and the punishment prescribed therefor, such act shall not be made punishable by any ordinance of any incorporated city or town; and any ordinance to such effect shall be null and void, and all prosecutions for any such public offence as may be within the jurisdiction of the authorities of such incorporated cities or towns, by and before such authorities, shall be had under the State law only." R. S. 1881, section 1640.

The purpose of the above provision is apparent. It is to prevent persons being punished twice for the same offence, once under the State law, and again under a city or town ordinance.

But it is claimed that the title to the act is not broad enough to cover the enactment in question, and, therefore, that it is void. We, however, are of a different opinion. The title, we

Jett v. City of Richmond.

have seen, is "An act concerning proceedings in criminal cases." The provision, that cities and towns shall not punish by ordinance an act made punishable by a State law, if not embraced by the title, which would seem to be the case, because it concerns proceedings in criminal cases, is germane to the subject expressed in the title, and properly connected with it, and is sufficient to satisfy the requirement of the constitution.

The provision in question, it seems to us, is properly and appropriately connected with the subject of proceedings in criminal cases, if, indeed, it does not constitute a part of that subject.

Many authorities have been cited upon the point by the respective counsel, but we deem it unnecessary to reproduce them here. The following are some of those which support the view which we take of the question: Bright v. McCullough, 27 Ind. 223; McCaslin v. The State, 44 Ind. 151; The State v. Tucker, 46 Ind. 355; Fletcher v. The State, 54 Ind. 462.

The fact that a civil action is brought by the city to recover the penalty inflicted by such an ordinance as that in question, and others of a similar character, does not make the penalty inflicted any the less a punishment. The form of the action to recover the penalty is entirely immaterial so far as the question we are now considering is concerned. The penalty thus inflicted, and recovered in the form of a civil action, the process being a warrant for the arrest of the defendant, and imprisonment being a means of coercing payment, is as much a punishment within the meaning of section 1640 as if the form of the action were criminal instead of civil.

The provision in question takes away the right of cities and towns to maintain actions, civil in form, in certain cases; but it is not therefore obnoxious to any constitutional objection, for civil and criminal matters may be embraced in the same act, where they are the subject of the enactment or properly connected with it. Thomasson v. The State, 15 Ind. 449. Section 2091, above quoted, provides for the punishment