
    Andrew Neal and others v. J. H. Keller.
    July Term, 1873.
    Justice of the Peace: Jurisdiction: Action against Another Justice. One justice of the peace has no power to hear and determine the question whether another justice of the peace has collected money in his official capacity, and refused on demand to pay it over to the person entitled to the same, and a judgment rendered by one justice of the peace against another on such a cause of action is void.
    
    Error from Jackson district court.
    Action by Keller upon an official bond given by Andrew Neal, (a justice of the peace,) as principal, and J. F Wyatt and Charles Sprague, as sureties. The petition is as follows:
    “The plaintiff complains of the said Andrew Neal, J. F. Wyatt, and Charles Sprague, defendants, for that the said defendants, on the eleventh of April, 1871, at the county of Jackson and state of Kansas, by their certain writing obligatory of that date, duly executed by them, and each of them, acknowledged themselves to be held and firmly bound unto the state of Kansas in the sum of two thousand dollars, which said writing obligatory was and is subject to a consideration thereunder written, and which condition is in words following, that is to say: ‘Whereas, the said Andrew Neal hath been duly elected and qualified as justice of the peace in and for Franklin township, in the county of Jackson, state of Kansas; and whereas, his commission as such was issued and is dated on the eleventh of April, 1871, — now the consideration of the above obligation is such that if the said Andrew Neal shall well and truly pay over, aecording to law, all money which may come into his hands by virtue of his said commission, and shall also well and truly perform every ministerial act that is enjoined upon him by law by virtue of his said office, then this obligation to be void, otherwise to be and remain in full force.’ And the said plaintiff further saith that the said Andrew Neal did thereupon take upon himself the duties of the said office of justice of the peace in and for the township, county, and state aforesaid, and assumed and did act as such at the time of the rendition of the judgment, and recovering of the money therein stated, as hereinafter stated. And the said *plaintiff avers that the said plaintiff did recover a judgment by the consideration of the court, before H. J. Ransom, a justice of the peace within and for the township of Franklin, county of Jackson, aforesaid, on or about the eighteenth of December, 1872, against the said Andrew Neal, as justice of the peace, one of the said defendants, for the sum of $121.16, with interest thereon at 7 per cent, per annum, his debt, and $9.15, his costs in and about his suit in that behalf expended, for a failure by the said Neal to pay over said money which came into his hands as justice of the peace as aforesaid; that afterwards said H. J. Ransom, justice of the peace as aforesaid, issued an execution on said judgment, directed to A. H. W., constable within and for said county, and said writ of execution was duly returned by said constable unsatisfied; that said judgment still remains in said court in full force, unreversed, and unsatisfied: yet the said defendants have not paid the said sum of $121.16, and costs thereon, or any part thereof, to the said plaintiff, whereby an action hath accrued to the plaintiff on said writing obligatory. (Copy of said writing obligatory, and also a copy of said judgment, are hereto attached and made a part of this petition.) Wherefore,” etc.
    The defendants demurred. The district court, at the April term, 1873, overruled the demurrer, and gave judgment in favor of the plaintiff.
    
      A. M. Crockett and Chas. Hayden, for plaintiffs in error.
    The petition must set forth all the facts which it would have been necessary to have alleged to have shown a breach of the bond, in case the judgment had never been rendered before Justice Ransom against the principal; not doing this, it-does not state a cause of action.
    If the transcript of the judgment recovered in favor of Keller v. Neal, before Justice Ransom, shows that said judgment was rendered for money which Neal had received as a justice of the peace, and had failed to pay over on demand, then the said judgment is void upon its face for want of jurisdiction of the said Ransom to try the subject-matter. Justices’Act, §§ 2, 8; Seney, Ohio Code, 424, note w; 1 West Law Month. 698. The refusul of Neal to pay *over said money would constitute “misconduct in office.” Ohio v. Jennings, 4 Ohio St. 419; People v. Schuyler, 4 N. T. 173.
    In order to render the sureties liable, the petition should state facts showing that Neal was authorized by virtue of his office to receive said money. The sureties are only liable for acts done virtute officii, and not for those committed colore officii. People v. Schuyler, 5 Barb. 166; Ex parte Beed, 4 Hill, 572; People v. Schuyler, 4 N. Y. 173.
    The fact that Neal voluntarily appeared at said trial before Justice Ransom did not confer jurisdiction over the subject-matter. Gilliland v. Seller’s Adm’rs, 2 Ohio St. 223; McCleary v. McLain, Id. 368; Robinson v. West, 11 Barb. 309; Beach v. Nixon, 9 N. Y. 35;. Dudley v. Mayhew, 3 N. Y. 9.
    If the court holds that said transcript of judgment rendered by Ransom does not show that said judgment was rendered against Neal. for money which he had collected as justice of the peace, then the petition is insufficient, for this is the only intimation given in said petition that Neal did so receive said money.
    
      Keller & Snycler, for defendant in error.
    The receiving and paying over of money collected by Neal in his-official capacity is a ministerial act, and receiving and not paying over is not such an act as would be considered “misconduct in office.”' Justices’ Act, § 136; Stallcup v. Baker, 18 Ohio St. 544; Peabody v. Potter, 4 Ohio St. 387. The action is for money had and received, and Justice Ransom had jurisdiction. The case in Carman v. Steubenville & I. R. Co., 4 Ohio St. 418, is unlike this case. The constable there committed a trespass which was a misconduct in office.
    The judgment rendered by Ransom is conclusive as to Neal, and we are not required to show or allege that Neal was authorized to receive said money. The judgment shows that it was money collected by him as justice of the peace, and that he failed to pay the same. Dawson v. Coles, 16 Johns. 55; Stone v. Elliott, 11 Ohio, 257; Babcock v. Camp, 12 Ohio St. 11.
    This was an original action in the district court; therefore, the first ground of demurrer is not well taken, as the district court had jurisdiction of the subject-matter. There *is nothing upon the face of the petition which shows a defect of parties defendant, and the petition avers every fact necessary to constitute a cause of action.
    
      
       A justice of tile peace has jurisdiction over an action against a constable, to recover moneys collected by Mm on an execution issued by such j ustice, and not paid over on demand. Dodge v. Kincaid, 30 Kan. 346; S. C. 1 Pac. Rep. 107.
    
   Valentine, J.

The petition in the court below alleges that the defendants “executed a certain written instrument,” which is given in full as an exhibit to the petition and made a part thereof, which written instrument is in effect an official bond of said Neal as justice of the peace, executed by the said three defendants. Said petition also alleges that said Neal entered upon the duties of the office of justice of the peace. Said petition also alleges that the plaintiff recovered a judgment before H. J. Ransom, another justice of the peace of the same township, against said Neal, as justice of the peace, for $121.16, with interest and costs, “for a failure by the said Neal to pay over said money which came into his hands as justice of the peace,” and that execution was issued on said judgment, and returned unsatisfied. The said judgment, and all the proceedings connected therewith, are also set out in full as an exhibit to said petition, and made a part thereof. The defendants demurred to said petition on three grounds — B'irst, that the district court had no jurisdiction of the subject-matter of the action; second, there was a defect of parties defendant; third, the petition did not state facts sufficient to constitute a cause of action. The court below overruled this demurrer, and then rendered judgment for the plaintiff and against the defendants for the sum of $123.96, and costs. The defendants below, as plaintiffs in error, now bring the case to this court.

We suppose the only question really in the case is whether the petition below states facts sufficient to constitute a cause of action. Does it state facts sufficient to constitute a cause of action aside from and independent of said judgment? Does it state facts sufficient to constitute a cause of action, taking into consideration said judgment? We must answer both of these questions in the *negative. The plaintiff did not allege in his petition that the defendant Neal collected money for the plaintiff in his official capacity, and then refused on demand to pay it over to the plaintiff; but he simply alleged that the plaintiff obtained a judgment against said Neal to that effect. The petition did not tender any issue as to whether the defendant Neal ever in fact collected .any money for the plaintiff or not, or ever in fact refused to pay it to the plaintiff or not; but the issue tendered was simply whether a certain judgment had ever been rendered or not. If the defendants had filed an answer denying all the allegations of the plaintiff’s petition, they would not have thereby denied that the defendant Neal •ever collected any money for the plaintiff, or that he ever refused to pay it over to the plaintiff, (for these were not alleged in the petition;) but they would have denied simply that the plaintiff ever obtained any such judgment as he alleged he did. Therefore, unless we take into consideration said judgment, the petition certainly does not state facts sufficient to constitute a cause of action.

But if we do take into consideration said judgment, then does the petition allege facts sufficient to constitute a cause of action ? Is .said judgment valid? Has one justice of the peace the power to hear and determine the question whether another justice of the peace has collected money in his official capacity, and refused on demand to pay it over to the person entitled thereto ? This is the main, in fact the only real, question in the case. There is no provision in the statutes that specifically gives one justice of the peace the power to adjudicate upon the official misconduct of another justice of the jieace, but there is a statute that specifically prohibits the same. Section 8 of the justices’ act provides that “justices shall not have oognizanee of any action; * * * third, in actions against justices of the peace or other officers, for misconduct in office, except in the eases provided for in this act.” Gen. St. 776. Among “the cases. provided for in this act,” as above mentioned, is the power of a justice “to proceed against constables failing *to make return, making false return, or failing to pay over money collected on execution issued by such justice.” Gen. St. 775, § 2, sub. 9. But the power of one justice to proceed against another justice for official misconduct is not one of “the cases provided for in this act.” Subdivisions first and second of section 136 of the justices’ act (Gen. St. 803) would seem to recognize judgments rendered by one justice against another for official misconduct; but still these subdivisions do not pretend to authorize the same to be done, and the whole of the article in which they are contained relates merely to stay of execution. Section 4 of the justices’ act gives a justice of the peace jurisdiction “in actions founded upon an undertaking given in pursuance of law in any civil proceeding pending before a justice, ” but does not attempt to give jurisdiction to a justice of the peace in actions founded upon an official bond. It is scarcely possible that any one should claim that a justice of the peace may collect money in his official capacity, and refuse to pay it over to the person entitled to the same, without committing official misconduct, or, as expressed in the statute, “misconduct in office.” If such a thing ■is official misconduct, then another justice is prohibited from taking cognizance of the same. Section 8, justices’ act. But if it is not official misconduct, then we have the strange and anomalous condition of things: a justice and his sureties becoming liable on an official bond for misconduct which is not official misconduct; and the equally strange and anomalous condition of things: an official bond being given by a justice and his sureties upon which no cause of action for official misconduct — “misconduct in office” — can ever accrue. Under the statutes of this state the justice and his sureties simply give bond “to pay, on demand, to each and every person who may be entitled thereto, all such sums of money as the said justice may become liable to pay on account of any moneys which may come into his hands by virtue of his office.” Gen. St. 1086, § 19. Is it possible that the justice may violate this bond without committing “misconduct in office?”

*We think the judgment rendered by Justice Ransom against Justice Neal is void, because Justice Ransom had no jurisdiction over the subject-matter of the action; and therefore the petition below does not state facts sufficient to constitute a cause of action, and therefore the judgment of the court below, and the order overruling said demurrer, must be reversed, and cause remanded for further proceedings.

(All the justices concurring.)  