#### William H. Dodge v. Kincaid Brothers.

1. Constable’s Bond; *Jurisdiction.*A justice of the peace has jurisdiction over an action against a constable, to recover moneys collected by him on an execution issued by such justice and not paid over on demand to the party entitled thereto.

2. Practice; *Parties; Action against Constable.*Where a bill of particulars in an action brought by A sets out a judgment in favor of B, and alleges that A was the real owner of the note, the basis of such judgment, and the real owner of the judgment, and no issue of fact as to these allegations is tendered by answer or otherwise, *held,*that B was not a necessary party plaintiff, and also that A could maintain his action against a constable for failing to pay over moneys collected on such judgment.

*Error from, Barton District Court.*

At the July Term, 1882, of the district court, Kincaid and another, partners as *Kincaid Brothers,*as plaintiffs, recovered a judgment against defendant *Dodge,*who brings the case here. The opinion states the facts.

*Wm. H. Dodge,*plaintiff in error, for himself.

*Maher & Osmond,*for defendants in error.

The opinion of the court was delivered by-

Brewer, J.:

This was an action commenced before a justice of the peace on a constable’s bond. The charge was that the *347constable had collected money on an execution which he failed to pay over upon demand. The plaintiff in error, a surety on the constable’s bond, and one of the defendants in the action, demurred on the grounds that the justice had no jurisdiction, that there was a defect of parties plaintiff, and that the bill of particulars did not state a cause of action. The justice overruled the demurrer, and rendered judgment in favor of the plaintiff. Dodge appealed to the district court, where the same ruling and judgment followed, and now he brings.the case here.

The ruling below was correct. It is true § 8, clause 3, ch. 81, Comp. Laws 1879, provides that justices shall not have cognizance of “actions against justices of the peace, or other officers, for misconduct in office, except in the cases provided for in this act; ” and it is also true that failing to pay over money collected on execution is misconduct- in office. *(Neal v. Keller,*12 Kas. 251.) But §2, clause 7, same chapter, gives them jurisdiction “to proceed against constables failing to make return, making false return, or failing to pay over money collected on execution issued by any justice.” Now this jurisdiction is not limited to any summary proceeding - by attachment as for a contempt, but includes any proceeding, even an ordinary action. Our codes are entitled codes of procedure, and within them are found provisions for all proceedings. No special kind of procedure is named in this clause. Hence it may fairly be construed to mean any procedure ordinarily resorted to in such eases. Apparently the intention was to except from the prohibition in § 8, *supra,*these particular cases of official wrong on the part of constables. It would seem a little strange if a justice had jurisdiction to punish an officer for official misconduct by proceedings as for a contempt, and yet had no jurisdiction of an action by a party injured against him for the same misconduct. Even if the justice had no jurisdiction, did not plaintiff in error waive this objection by appealing to the district court, and there going to trial on his demurrer which raised other questions *348than those of jurisdiction, instead of moving to dismiss the case for want of jurisdiction? *(Dickson v. Randal,*19 Kas. 212.)

The other questions may be considered together. The bill of particulars set out a judgment in favor of Hapgood & Co. against J. C. Dawson, upon a note made by Dawson to Hap-good & Co., and then alleged that plaintiffs were at the time suit was brought the real owners and holders of said note, and are now and always have been the owners of said judgment. There is, it is true, no allegation of a transfer of the judgment, but the demurrer admits the truth of the allegations ; and if true, the plaintiffs are the real parties in interest, the ones entitled to the money and to bring this action. It was not necessary for them to unite as plaintiffs the nominal plaintiffs in the judgment, for they had no interest in ■ the matter. If defendant wished to challenge plaintiffs’ right to the money or their ownership of the judgment, he should have answered, and thus tendered an issue thereon for trial.

There being no other question, the judgment will be affirmed.

All the Justices concurring.