ine, was the same as the nervines sold in the drug stores, that was sufficient, although his medicine which he called a nervine may have contained other ingredients besides a nervine in fact; but, as before stated, the question whether the complaint was proved or not is one of fact, and it was submitted to the court below upon the evidence, and the court below found against the defendant, and we think the finding must now stand, although the evidence against the defendant may not be very convincing or satisfactory.

The judgment of the court below will be affirmed. (All the justices concurring.)

DIVORCE-ALIMONY-CUSTODY AND MAINTENANCE OF Children.

Error from Dickinson county.

G. F. Grattan, for plaintiff in error.

Stambaugh & Hurd and McClure & Austin, for defendant in error. PER CURIAM. Action for divorce and alimony. The record shows that this case was tried at the March term of the court for 1884. Both parties were represented by their respective attorneys. After all the evidence had been submitted on the part of the plaintiff and defendant the court rendered its decree, granting the wife a divorce as prayed for in her petition, and also awarded her the custody of all her children, four in number. No order or judgment, however, was rendered specifying the amount of money the defendant would be required to pay for the support of the wife and children. The court then adjourned sine die on March 11, 1884. Before adjourning "the judge of the court stated that if it would be convenient for counsel it would be an accomodation to him to have the journal entry settled at Junction City, Davis county, Kansas, the following week;" and thereupon all of the counsel agreed that the journal entry in the case should be settled at Junction City on March 21, 1884, and filed in the court at Dickinson county as of March 11, 1884. Thereafter, on March 21, 1884, the plaintiff, by her attorneys, and the defendant, in person and by his attorneys, appeared before the district judge at Junction City, and then agreed upon a journal entry, which was afterwards signed by the judge.

This journal entry provided that the defendant should pay to the wife, for the support and maintenance of the minor children, so long as she should have the care and custody of them, $150 per annum for each of the children; and that defendant should pay to the wife, as alimony, the sum of $200, which payment should continue to the wife for her life, unless she should marry again, in which case the alimony to her was to cease from the date of her marriage. As these orders were not made or rendered during the March term of the dis

trict court of Dickinson county, such orders and judgment were improperly embraced in the journal entry. If these orders and judg ment were rendered at Junction City, then, within the authority of Earls v. Earls, 27 Kan. 538, they are void and of no effect. If they were not made and rendered at Junction City, they were never made or rendered at any other place. Before the journal entry was spread upon the records of the district court of Dickinson county the plaintiff objected thereto in proper form. All of the objections of plaintiff were overruled. Instead of overruling the objections the court should have stricken from the journal entry the orders relating to the sums awarded the wife as alimony, and also awarded her for the support and maintenance of the children, as these orders and judgment were not rendered upon the trial of the case or during the session of any term of court. Our conclusion, therefore, is that so much of the journal entry as regards the granting the wife the divorce, as prayed for in the petition, and that awards her the custody of all her children, is valid, and must stand as the judgment of the district court; but, so much of the decree as allows specific sums for alimony for the wife, and for the support of the children, must be set aside, vacated, and held for naught.

As the question of alimony will again be before the trial court for decision, we deem it proper to say that if the defendant is a person of large property, as indicated in the brief of plaintiff, the money allowed the wife as alimony is wholly inadequate. Even if the husband is a man of moderate means the wife ought to receive a much greater allowance than the amount embraced in the journal entry. As the divorce to the wife was granted by reason of the fault and aggression of the husband, the wife should be allowed such alimony as would maintain her and her children in as good a condition as if she were still living with her husband.

In deciding this case we have considered the "case made" only, and have wholly disregarded the affidavits filed. It is also proper for us to say that in setting aside and vacating the judgment for alimony, and for the support of the children, we do not reflect upon the action of the district judge at Junction City in any manner whatever, because all of the proceedings had at Junction City were by and with the consent of the attorneys of plaintiff, and the defendant and his attorneys; but consent of parties does not confer jurisdiction under the circumstances stated, and therefore the judgment for alimony and for the support of the children is void. The acceptance by the plaintiff of $200, and the payment to her attorneys of $60, do not affect the case, because such payments cannot render a void judgment valid or binding.

The judgment allowing specific sums for alimony and providing for the support of the children must be vacated, and the cause remanded for a new trial as to these matters.

ELECTION OF JUSTICE OF THE PEACE-BALLOTS-EVIDENCE.

Original proceedings in quo warranto.
Leland J. Webb, for plaintiff.

Waters & Chase and R. A. Friedrich, for defendant.

PER CURIAM. The ballots in this case have been properly preserved, and the evidence is conclusive that they have not been changed or tampered with. Having, therefore, been identified beyond all reasonable doubt, they are competent evidence, and controlling. The rule was properly stated in Dorey v. Lynn, 31 Kan. 758, S. C. 3 PAC. REP. 557, that "whenever the ballots can be properly identified they are, of course, the best evidence; much better and more reliable than a mere abstract or summary of the same made by the election officers." Upon a count of the ballots by the commissioners appointed by this court for that purpose, it appears that the plaintiff received at the city election on April 7, 1885, for justice of the peace, 1,229 votes, and that H. S. Clark, the defendant, only received 1,217 votes. Our attention has been called to the ballots that were rejected by the commissioners; these have been carefully and critically examined by the court. Giving the defendant the benefit of all the ballots of which we have any doubt, the plaintiff still has a majority of six. It is therefore the opinion of this court that the plaintiff was elected as justice of the peace of the city of Topeka at the city election held in said city on April 7, 1885, and is now entitled to said office, and that the defendant was not elected to said. office at said election. It is therefore the judgment of this court that the defendant be ousted and excluded from the office of justice of the peace of the city of Topeka, and that he be required to deliver over at once to the plaintiff all books, papers, and documents in his custody, or under his control, belonging to the office of justice of the peace of the city of Topeka, and that the plaintiff recover from the defendant all costs in his behalf expended, taxed at $, for which let execution issue.

1. CRIMINAL LAW-ORDER REFUSING WARRANT OF ARREST-APPEAL.

Where a private citizen presents to the judge of the district court a complaint in writing, and under oath, charging the defendant with the commission of a misdemeanor, for which the punishment may be a fine not exceeding $500 and imprisonment in the county jail not exceeding one year, and the complainant demands of the judge that a warrant shall be issued for the arrest of the defendant, and that the judge shall take cognizance of the complaint, and hear and determine the case, and the judge refuses, held, that no appeal lies to the supreme court from such refusal,

2. QUERY:

Is not the decision of the judge in such a case correct?

Appeal from Atchison county.
Coates & Bird, for appellant.
Mills & Wells, for appellee.

VALENTINE, J. On February 14, 1885, Luther C. Challis, a private citizen, presented to the Hon. DAVID MARTIN, judge of the district court of the Second judicial district, a complaint in writing, and u.. ler oath, charging Robert Forbriger with the commission of a public offense, a misdemeanor, under section 210 of the crimes and punishment act, for which offense the punishment may be a fine not exceeding $500, and imprisonment in the county jail not exceeding one year. The complainant demanded of the judge that a warrant should be issued for the arrest of Forbriger, and that the judge should take cognizance of the complaint, and hear and determine the case. The judge, however, refused so to do, and from such refusal a supposed appeal, ostensibly by the state, has been taken to this court. We think the supposed appeal must be dismissed, for the reason that no appeal in any such case is authorized by any statute of the state of Kansas. The case has never been in the district court, and no jurisdiction has ever been obtained over Forbriger by any court or judge. The case was instituted before Judge MARTIN as a supposed magistrate, under the supposed authority of sections 7, 35, and 36 of the Criminal Code. Now, supposing that the judge of the district court is a magistrate under said sections, and that he might take jurisdiction in any case provided for by the same, still no appeal from the ecision of such magistrate in such a case will lie to the supreme court, or to any other court. The proceeding in such a case is merely a preliminary examination, which is not appealable to any court. But even if we should consider that the proceeding in such a case is more than a preliminary examination, and that the judge of the district court is invested by these sections, and section 1, art. 1, of the justice's misdemeanor act, with the same jurisdiction that a justice of the peace would have in a like case, and with the power to hear and determine the case finally upon its merits, still neither the state, nor any private citizen prosecuting in the name of the state,

would have any appeal to the supreme court or to any other court, but the defendant only would have such appeal, and his appeal would not be to the supreme court, but to the district court. Justice's Misdemeanor Act, art. 4, § 21.

The defendant, however, in this case is charged with the commission of a misdemeanor in which the punishment cannot exceed a fine of $500 and imprisonment for one year, and there is no necessity for a preliminary examination in such a case, even if a preliminary examination could be had at all, (In re Donnelly, 30 Kan. 191, 424; S. C. PAC. REP. 648, 778;) and only justices of the peace, and the district courts have original jurisdiction to hear and determine such cases upon their merits. In re Donnelly, supra; Justice's Misdemeanor Act, art. 1, § 1. District judges have no such jurisdiction in such cases. Previous to March 1, 1869, justices of the peace had exclusive original jurisdiction of this class of cases, but at that time the law was so changed that the district courts now have equal and concurrent jurisdiction with justices of the peace, but there is no provision anywhere in the statutes authorizing any other court or any judge or magistrate to take original jurisdiction of such cases. Hence the jurisdiction is exclusive in justices' courts, and in the district courts. Besides, in the district courts all criminal prosecutions must be carried on upon informations filed by a public prosecutor, or indictments found by the grand jury, (State v. Brooks, ante, 591,) and not upon complaints filed by a mere private citizen. But it is not claimed in this case that this prosecution has been instituted in the district court, but it is claimed that it has been instituted before the district judge as a magistrate, under said sections 7, 35, and 36 of the Criminal Code. We suppose that it will hardly be claimed that the judge could exercise jurisdiction over this class of cases as a judge of the district court at chambers, for chambers business relates merely to matters pending, or to be instituted, in the judge's own court, and not to matters having no connection with his court, or which relate only to something pending in some other court, or before some other magistrate. Besides, if the case is to be tried before the judge upon its merits, the defendant would be entitled to a jury trial, and a judge at chambers could not impanel a jury.

If, however, it should be claimed and admitted that the judge in a case like this would not be exercising jurisdiction of matters pertaining to the district court, but would be exercising jurisdiction as a magistrate, or some other court, independent of the district court, then would he not, in exercising such jurisdiction, be violating that provision of the constitution of the state which prohibits all judges of the district courts and justices of the supreme court from holding "any other office of profit or trust under the authority of the state or United States during the term of office for which said justices and judges shall be elected?" Const. art. 3, § 13. A district judge should not be both a judge of the district court and a magistrate independent of