
    No. 36,214
    City of Junction City, Appellant, v. L. W. Hardin, Appellee.
    
    (155 P. 2d 323)
    Opinion filed January 27, 1945.
    
      U. S. Weary, of Junction City, argued the cause for the appellant.
    
      I. M. Platt and Roy W. Clibom, both of Junction City, argued the cause for the appellee.
    
      Vincent F. Hiebsch, of Wichita, as amicus curiae.
    
   The opinion of the court was delivered by

Harvey, C. J.:

In a complaint filed in police court L. W. Hardin was charged with the violation of a city ordinance.. Upon a trial in police court he was found guilty and appealed.

In the district court the facts were stipulated and the court made a general finding that the defendant was not guilty and discharged him. Counsel for the city announced that it desired “the record to show that all questions concerned in this litigation are reserved by the city for appeal to the supreme court.” Thereafter and within due time the city attorney filed an affidavit for appeal in which two general questions were stated. Our difficulty in considering the matter is that the journal entry of the court does not set forth any specific legal question ruled upon by the trial court adversely to the city. The abstract does disclose comments of the court and colloquy between court and counsel respecting the validity of the ordinance and the interpretation of some of the language used therein. The validfiy of the ordinance is not at issue for the reason that the trial court did not invalidate the ordinance. The real complaint of the city seems to be that the trial court incorrectly construed the ordinance;.- But the appellant did not definitely reserve the question of the court’s construction of the ordinance; the journal entry makes no reference to it. Accordingly the record presents nothing for our consideration.

The result is the appeal presents nothing for review. It is therefore dismissed.

Thiele, J.

(dissenting): I find no particular fault with the abstract statement of law contained in the syllabus. I do not agree, however, with the disposition made of the appeal. As the case was tried below on an agreed statement of facts, the only questions for decision by the trial court were questions of law. From a review of the record as abstracted, I think the questions reserved for review were set out with sufficient clarity that the appeal should be entertained.

I am authorized to say that Mr. Justice Wedell concurs herein.

Burch, J., not participating.  