#### City of Baraboo, Respondent, vs. Stone, Appellant.

*May 4*—

May *21, 1914.*

*Municipal corporations: Baraboo city charter: Appeal from police justice: Affidavit of good faith.*

Under sec. 10, ch. VII, of the Baraboo city charter (Laws of 1882, ch. 21), upon appeal by the defendant from a judgment of the police justice of that city, an affidavit of good faith is not necessary.

*398Appeal from an order of tbe circuit court for Sank county: James O’Neill, Judge.

*Reversed.*

For tbe appellant there was a brief by *Grotophorstj Evans &*Thomas, and oral argument by *Evan A. Evans.*

*V. H. Cady,*for tbe respondent.

KebwiN, J.

Tbe defendant was arrested on a warrant issued by a police justice of tbe city of Barahoo, Wisconsin, charging ber with disorderly conduct upon tbe streets and in public places of said city, contrary to tbe provisions of tbe city charter of said city. Upon bearing before tbe justice tbe defendant was found guilty and fined $5 and costs of prosecution, and in default of tbe immediate payment of such- fine and costs was ordered imprisoned in tbe common jail of Sauk county for ten days and until such fine and costs be paid.

Tbe defendant served notice of appeal from tbe judgment and conviction and also gave a proper undertaking, but failed to make and file an affidavit to tbe effect that tbe appeal was taken in good faith and not for tbe purpose of delay. Tbe circuit court on motion dismissed tbe appeal for failure to file said affidavit, bolding that such affidavit was necessary to perfect tbe appeal.

Tbe only question here is whether tbe appeal was properly taken. Sec. 1 of cb. VII of tbe charter of tbe city of *Barahoo*(Laws of 1882, cb. 21) provides that all actions brought to recover any penalty or forfeiture under tbe act, or any ordinances, by-laws, or regulations made in pursuance thereof, shall be brought in tbe corporate name of' tbe city. Sec. 2 provides that tbe first process shall be a summons, unless oath be made for a warrant as in criminal cases before justices of tbe peace. Sec. 6 provides that in cases where oath is made for a warrant tbe complaint shall be made on oath of the complainant, and provides substantially what tbe complaint shall contain, and that upon filing such com*399plaint tbe police justice shall issne a warrant, and provides the form of the warrant; and further provides the proceedings upon the return of such warrant; and secs. 8 and 9 provide for the trial, proceedings, rendition of judgment, and commitment in cases where action is commenced by warrant. Sec. 10’ provides in substance that the defendant may appeal from the judgment to the circuit court for Sauk county, provided that such defendant, within twenty-four hours, pays the justice his costs and $1 for his return, and enters into a recognizance with one or more sufficient sureties to be approved by the justice, conditioned to appear before said court and abide the judgment of the court therein, and that the justice from whose judgment an appeal shall be taken shall make a special return of the proceedings had before him and forthwith cause the summons or warrant and return, together with the proceedings and a copy of the entries in his docket, together with the recognizance, to be filed in the office of the clerk of said court; and further provides that the city may appeal from any such judgment as in other cases before justices of the peace.

This section of the charter seems to provide for an appeal by the defendant and the steps necessary to be taken to perfect the appeal, and does not require an affidavit of good faith. It is quite apparent that the recognizance provided for under this section was calculated to obviate the necessity of an affidavit of good faith, and that under the provisions of the charter no affidavit of good faith is necessary on the defendant’s appeal. It follows that the court below was in error in dismissing the appeal.

*By the Court.*— The order appealed from is reversed, and the cause remanded for further proceedings according to law.