The opinion of the court was delivered by
This was a criminal action. The judgment of the justice of the peace was- rendered on a plea of guilty, and the defendant was sentenced and adjudged to pay a fine of $5, and the costs of prosecution, and stand committed to the county jail until the same were paid. The defendant. *391objected to tbe costs taxed for the county attorney and the justice of the peace for trial of the case, claiming that, as a plea of guilty was entered upon arraignment, no costs could be taxed for a trial. After a motion to retax costs had been overruled, and exceptions taken, the defendant attempted to remove the case to the district court on petition in error. No appéal was taken. The district court reversed the judgment of the justice of the peace as to the action had in overruling the motion to disallow the costs taxed for a trial of the case, and rendered judgment for defendant for said fees of $5.50 so taxed against him as costs, and also ordered that defendant as such plaintiff in error recover of the defendant in error his costs taxed at $2.65. Sec. 20 of procedure before justices in misdemeanors provides, “All proceedings, including the mode of procuring, and the grounds for, a change of venue, upon the trial of misdemeanors before a justice of the peace, shall be governed by the provisions of the code of criminal procedure, so far as the same are in their nature applicable, and in respect to which no provision is made by statute.” Sec. 21 of the same procedure authorizes appeals. There is no statute permitting the district court to review on a petition in error the judgment of a justice of the peace in a criminal case. In the case of The State v. Boyle, 10 Kas. 113, this court decided that a criminal case must be removed from the district court to the supreme court on appeal, and not on petition in error.
As all proceedings upon the trial of misdemeanors before a justice of the peace are governed by the provisions of the code of criminal procedure, so far as applicable, unless different provision has been made by statute, and as appeals only are authorized in criminal trials before a justice of the peace, we conclude the defendant could not have the judgment of the justice of the peace reversed by the district court on a petition in error. As the district court had no jurisdiction of the cause except on appeal, and as no appeal was taken, the action of the district' court was erroneous. The case of The State v. Menhart, 9 Kas. 98, referred to by counsel of appellee to sustain the judgment of the district court, is not *392authority, as in that case the jurisdiction of the district court was neither questioned nor passed upon.- The judgment of the court below must be reversed.
All the Justices concurring.