Eastwood, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
The defendant was evidently found guilty by the magistrate of the Municipal Court of the Borough of Neptune City on October 1, 1953 of violating the zoning ordinance of that municipality and directed to attend a session of that court to be held on the evening of October 6, 1953 at which the penalty for the violation would be determined.
The record before us contains the following memorial of the proceedings on October 6, 1953:
"Ordered and adjudged that the defendant is guilty as of October 1, 1953 of said offense as charged in the complaint and is convicted thereof, and is sentenced on October 6, 1953 to a fine of Two hundred ($200.00) dollars."
On October 7, 1953 the defendant filed a petition addressed to the Monmouth County Court in which he prayed, inter alia , for the following relief:
"That the judgment and penalty, as inflicted by the Court below, be set aside, vacated, and for nothing holden, for want of jurisdiction, since the above matter is purely a civil matter and not criminal, and reversed * * * and that a trial de novo be granted to the herein appellant * * *."
On October 8, 1953 the judge of the County Court entered an order:
"That the judgment and sentence as finally entered on the 6th day of October, 1953, is hereby arrested, set aside, and for nothing holden, and the matter to be heard de novo in this Court as a Civil Action for the purpose thereof."
On October 19, 1953 the defendant filed in the County Court a notice of appeal, dated October 5, 1953 and said by the borough attorney to have been served upon him on the
morning of October 6, 1953 before the evening session of the municipal court, from his conviction "on October 1, 1953."
On October 23, 1953 in response to a motion made by the borough attorney the judge of the County Court entered an order dismissing the appeal.
The defendant then gave written notice dated October 23, 1953 and filed on October 29, 1953 to the borough attorney of his intention to apply on November ...