The opinion of the court was delivered by
Horton, C. J.:
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 *236$31,213.18. This judgment was subsequently setasideby the district court upon the ground that the court had no jurisdiction of the defendants, or either of them. This proceeding has been brought to reverse the ruling of the district court. It is claimed by the plaintiff that the action in the court below was for the recovery of a penalty imposed by statute; therefore that the action was properly brought in Kearny county, and the service of the summons properly made in Pawnee county. (Civil Code, §48.) At most the action is prosecuted to recover illegal allowances and a penalty. The penalty, if any, follows as an incident to the recovery of the illegal allowances. An action could not be brought under the statute for the penalty only, nor could an action under the statute be brought for the recovery merely of the attorney’s fee. There must be a verdict, or general finding, for a specific amount, before one hundred per cent, can be added. The illegal fees, costs, or other allowances sued for must first be ascertained, and then on the rendering of the judgment for such illegal fees, costs, or other allowances, it is the duty of the court to add one hundred per cent, to the same. If the action is before a justice, an attorney’s fee of $10 must be added. If the action is pending in the district court, an attorney’s fee of $25 must be added. The action, therefore, in our opinion, is not merely for the recovery of a penalty imposed by statute, but is an action for the recovery of illegal fees, costs, or other allowances, and when such fees, costs or other allowances are determined by a verdict or finding, the court is to add one hundred per cent, and the attorney’s fees prescribed. The action, therefore, does Dot come strictly within the provisions of said §48. Under the statute, the cause of action or subject-matter must all be for the recovery of a penalty.
"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 *237of the judgment. The district court, in rendering judgment, had no jurisdiction over either of the defendants, and therefore committed no error in subsequently vacating the same. (Civil Code, §55.) If an action could have been brought, or had been brought, for the recovery of the penalty only, a different question would be presented.
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.
All the Justices concurring.