Ex parte Pointer

Party ; Practice ; Ex pwrte Proceedings. When the decision of a case' determines which one of two certain persons is entitled to certain money, and one of said persons is not made a party to the case, the court cannot adj udicate upon his rights. And where such a case is brought to the supreme court the same rule obtains, and the petition in error will be dismissed.

Errror from Cherokee District Court. The order appealed from was made by the district court of Cherokee county at the July Term 1871, in the case of “The State of Kansas v. Charles Bearow.” The record contains a transcript of the proceedings in that case, and shows that Bearow was charged by information with grand larceny. After the trial, and the verdict of not guilty, the record is as follows: “ It is thereupon considered and ordered that said defendant be discharged, and go hence without day. And upon motion of defendant’s counsel for an order directed to John Polster, the prosecuting witness in this cause,, to pay over to the defendant Charles Bearow the sum of $114.55, (the sum taken from said defendant on his arrest and examination, and paid to Polster by order of the committing magistrate,) the court, being fully advised in the premises doth find that said Polster holds said money by virtue of an .order of I. W. Davis, J. P., before whom the said Bearow was examined on the charge of grand larceny; and thereupon the court doth order and direct that the said John Polster pay ■said money into the hands of the clerk of this court for the .use and benefit of said defendant.” Polster excepted, and filed in this court a petition setting up the facts, and asking that said order of the district court be reversed. The petition is entitled “Ex parte, John Polster.” No one was named or ¡summoned as defendant in error. Polster was and is entitled to said sum of $114.55 by virtue ■of §§ 303, 304 of the criminal code, as the agent of the owner who was absent. The justice of the peace before whom the examination of said Bearow was held has the exclusive right to determine the question of ownership of the stolen property, and such order was made. The district court has no right to make any order in regard to stolen property except by virtue ■of §306 of the- criminal code, and then only in case of a “ conviction.” Here Bearow was acquitted. The order of the district court is erroneous and should be reversed.