44 Kan. 231 | Kan. | 1889
The opinion of the court was delivered by
This was an action commenced in Kearny county by the board of commissioners of that county against J. W. Rush and The First National Bank of Larned, under §39 of chapter 25 of the act relating to counties and county officers. The section reads:
“All fees, costs or other allowances, or any fees obtained from or allowed against any county, when the same are not authorized by law, and not refunded on demand, may be recovered back in a civil action, in the name of the proper county, in any court of competent jurisdiction; and on the rendering of the judgment in any such case, the justice or the court rendering the same shall add one hundred per cent, to the same, to go to the county, and also a fee of ten dollars if in a justice’s court, and twenty-five dollars if in the district court, to go to the county attorney or other person prosecuting the same.” (Gen. Stat. of 1889, ¶1658.)
A summons was issued by the clerk of the district court of Kearny county to the sheriff of Pawnee county, and served in that county on each of the defendants. Judgment was rendered upon default against each of the defendants for
"We cannot and ought not to extend the terms of the section to embrace cases not within its language. WEile the per cent, to be added is a large amount, the principal is the same as if only one or more per cent, were to be added, and the action is no more for a penalty than if only a small per cent, in place of one hundred per cent, were to be added on the rendering
It is urged that the petition is fatally defective. In view of the conclusion we have reached, we need not decide this now. We would suggest, however, that if the action is prosecuted, it would be better if the petition is amended so as to expressly allege that the money was drawn from the county treasury upon the orders or warrants of the board of county commissioners, or that the orders or warrants were refunded into county bonds.
The judgment of the district court will be affirmed.