#### City of Chicago, Plaintiff in Error, v. H. W. Smith, Defendant in Error.

Gen. No. 20,136.

(Not to he reported in full.)

Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding.

Heard in the Branch Appellate Court at the March term, 1914.

Affirmed.

Opinion filed June 17, 1915.

Abstract of the Decision.

1. Appeal and error, § 1265 * —when regularity of proceedings presumed. On an appeal or writ of error the findings and judgments of a trial court are presumed to he correct until the contrary is made to appear.

2. Municipal corporations, § 867 * —when acquittal of defendant in action on ordinance not open to review. The question whether judgment was properly rendered for the defendant, in an action *306on an ordinance for a penalty, will not be considered on writ of error where the ordinance was not included in the statement of the facts or in the stenographic report of the evidence.

*305Statement of the Case.

Action by the City of Chicago against H. W. Smith to recover a penalty for the violation of a city ordinance. Judgment was rendered for the defendant, and the city sued out a writ of error.-

The stenographic report of the trial did not show that any ordinance of the city was offered in evidence or considered by the court. The ordinance alleged to have been violated, was not set out in the plaintiff’s statement of claim, but was merely referred to as “Section 1541 of the City Code of 1911.”

William H. Sexton and James S. McInerney, for plaintiff in error; Ulysses S. Schwartz, of counsel.

No appearance for defendant in error.

*

See Illinois Notes Digest, Vols. XI to XV, ant? Cumulative Quarterly, same topic and section number.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice Fitch

delivered the opinion of the court.

*3063. Municipal corporations, § 864 * —when failure to prove ordinance justifies finding for defendant. Where an ordinance is not set out but is only referred to by section number in the plaintiff’s statement of claim in the Municipal Court, in an action to recover a penalty, and the ordinance was neither offered in evidence nor considered at the trial, the only finding that the trial court could make was in favor of the defendant.