The opinion of the court was delivered by
Dennison, J. :The petitioner in this case was the complaining witness against one Gilmore for having violatéd ¶ 6707 of the General Statutes of 1889. Upon the trial of the case of The State v. Gilmore, the justice trying the same found that Gilmore was not guilty, and that the prosecution by said Walker was without probable cause, and said justice thereupon adjudged that the costs should be paid by said complaining witness, this petitioner, and ordered him committed to the county jail until said costs were paid, in compliance with ¶ 5441, id.
Paragraph 6707, id., is one of the sections of the stray law of this state, and reads as follows :
"If any person shall’ sell or dispose of any stray or take the same out of this state before the title shall have vested in him, he shall forfeit and pay to the county double the value of such stray, and may also be punished by fine not to exceed $20, and imprisonment in the county jail not to exceed 30 days.”
Paragraph 6710, id., reads as follows :
"Justices of the peace, in their respective counties, shall have jurisdiction and take cognizance of all *291actions for tlie violations of this article, and enforce all the penalties and fines against persons who may be held guilty of such violations. . . . ’.”
Paragraph 6711, id., reads as follows :
“Upon the affidavit of any citizen of the county wherein such strays may be held or so taken up being filed with any justice of the peace of the county, setting forth that any person, naming him, has disposed of any stray, or in any manner violated the provisions of this article, and describing the stray in full, said justice shall issue his summons and writ as is provided in civil cases, commanding the officer to take the stray into his possession and summon the persons who may have thus violated this article to appear and. answer, as is provided in cases of replevin.”
Paragraph 6712, id., reads as follows:
“All trials before a justice of the peace under this article, if demanded by the defendant, shall be by a jury of siK competent men, to be selected as in civil cases, who shall, if they find the defendant guilty, assess the fine to be paid by him or the imprisonment to be inflicted, subject to an appeal as in civil cases.”
Paragraph 6713 provides what the judgment shall be. The law is complete within itself, and provides its own mode of procedure, and while ¶ 6707 provides for a fine and imprisonment, the proceedings to obtain such a judgment cannot be had under the criminal code. Paragraph 6711 fully provides the method of procedure upon the filing of the affidavit of any citizen :
“The justice shall issue his summons and writ, as is provided in civil cases, commanding the officer to take the stray into his possession and summon the person who may have thus violated this article to appear and answer, as is provided in cases of replevin.”
And ¶ 6712 provides that the jury shall “be selected as in civil cases.” The code of procedure before jus*292tices of the peace in misdemeanors provides that, upon the filing of a complaint, the justice shall issue a warrant for the arrest of the person complained against. It also provides the manner in which the jury shall be selected. The justice of the peace in this case has attempted to hold this petitioner under ¶ 5451, id., which reads as follows :
‘1 Whenever the defendant tried under the provivisions of this act shall be acquitted, he shall be immediately discharged, and if the justice or jury trying the case shall state in the finding that the complaint was malicious or without probable cause, the justice shall enter judgment against the complainant for all •costs that shall have accrued in the proceedings had upon such complaint, and shall commit such complainant to jail until such costs be paid, unless he shall execute a bond to the state in double the amount thereof, with security satisfactory to the justice, that he will pay such judgment within 30 days after the date of its rendition.”
This the justice has no right to do. The defendant, Gilmore, was not tried under the provisions of this act, which is chapter 83, entitled “An act regulating the jurisdiction and procedure before justices of the peace in cases of misdemeanor.” It will be noticed that the wording of ¶ 5451 is not “ whenever the defendant tried for misdemeanor shall be acquitted,” but it is “whenever the defendant tried under the provisions of this act shall be acquitted.” The defendant was not tried under the provisions of chapter 83 of the code of procedure before justices of the peace in misdemeanors, but was tried under article 3 of chapter 105, relating to strays, and in this act there is no provision for taxing the costs against the complaining witness, or for making a finding that the complaint was malicious or without probable cause, or for imprisoning the complainant for non-payment of costs.
*293The attorney for the respondent' in this case raises the point that this petitioner has made application for a writ of habeas corpus before the probate judge of Bourbon county, Kansas, and the writ had been denied, and suggests the question of res adjudícala. This point is not well taken, and the petitioner has a right to apply to this court for a writ, although the same may have been denied by the probate judge.
It is the order of this court that the application be allowed, and that said respondent, T. J. Allen, sheriff, and keeper of the county jail of Bourbon county, restore said Arista Walker to liberty.
All the Judges concurring.