11 Kan. 378 | Kan. | 1873
The opinion of the court was delivered by
The only question presented to us for our consideration in this case is, whether the sureties on the official bond of a justice of the peace, as well as the justice himself, are liable to the owner of a judgment rendered by such justice and entered upon his docket, for money paid to and collected by. said justice in satisfaction of said judgment, where the justice afterward fails and refuses to pay over said money to said owner of the judgment. The question thus presented must undoubtedly be answered in the affirmative. The sureties are certainly liable. The money was paid to the justice because he was a justice of the peace, and because he had the power by virtue of process issued from his court to enforce the collection of the same. It “came into his hands by virtue of his office,” and the sureties as well as himself are liable for it. (Gen. Stat., 1085, ch. 110, §191) The justice did not receive the money merely as a private citizen, as it seems to be claimed by the defendant in error. It does not appear from the record that any execution had ever been issued on said judgment, and hence the said justice of the peace was the only officer who had any right to receive said money. The view we have^taken in this case is not expressly enacted by any .statute, although it harmonizes with every statute that has any reference to this or any kindred subject: §19, ch. 110, supra; Justices’ Act, §§188, 189; Civil Code, §521; ch. 39, Gen. Stat., § 29. See also the authorities cited in plaintiffs’ brief.
The judgment of the court below is reversed, and cause remanded for 'further proceedings in accordance with this opinion.