¶1The opinion of the court was delivered by
¶2The first question presented is, whether the-action was barred by the statute of limitations at the time it was commenced. The fine and costs were adjudged against Macke on October 1, 1883, and the petition was filed to enforce the payment of the fine and costs against the property of the defendants on February 27, 1885, more than a year after the judgment rendered against Macke. It is said the district court held that the action was barred by the 4th subdivision of §18 of the code, which reads as follows:
¶3“Within one year: an action for libel, slander, assault, battery, malicious prosecution, or false imprisonment; an action upon a statute for a penalty or forfeiture, except where the-statute imposing it prescribes a different limitation.”
¶4On the part of the plaintiff, it is contended that the action comes within either the 2d or 6th subdivision of §18. They are :
¶52d. “Within three years:.an action upon contract, not in-writing, express or implied; an action upon a liability created by statute, other than a forfeiture or penalty.”
¶66th. “An action for relief, not hereinbefore provided for, can only be brought within five years after the cause of action shall have accrued.”
¶7*720"We do not tbiuk tbe action is one for a penalty or forfeiture. It is in fact upon a liability created by statute, and therefore Avithin the terms of subdivision 2. The action is to enforce a lien for the fine and costs which have accrued to the .state. “The fine and costs are not imposed upon the oAvner of the premises, but are imposed upon the person who violates the law, and the owner of the premises is simply made a surety for their payment.” (Hardten v. The State, 32 Kas. 637.)
¶8It is insisted, however, on the part of the defendants, that the petition is fatally defective upon its face because it does not show that Macke was actually committed to the jail of the county. It is doubtful whether this question is in the case. The petition recites that the district court found Macke guilty upon the verdict rendered by the jury, and sentenced him to pay a fine of $250, and all of the costs of the prosecution, taxed at $103.25, “and that he stand committed to the county jail of Lyon county until the fine and costs are paid in full.” The petition further recites that the judgment and sentence against Macke have “neither been paid, appealed from, modified, satisfied, nor reversed.” We may therefore presume that the sentence was carried into effect, and that the defendant Avas actually committed to the jail of Lyon county. If this were not the case, we are not satisfied Avith the interpretation given to the proviso of said § 18, by the counsel of defendants. We think said proviso is to be construed in harmony with the entire section, and that it was the purpose of the legislature in adding the proviso to the section to prevent thereby the person who violates the law from being relieved or discharged from commitment on account of the fine and costs being made a lien upon the real estate of the person knoAvingly suffering and permitting him to sell liquor thereon in violation of law.
¶9It must be apparent upon a careful consideration that this view is the proper one, otherwise the lien for the fine and costs upon the real estate would be postponed until a future and indefinite date. The action to enforce the lien may be commenced any time after the judgment, but within the time prescribed in said subdivision 2. (Hardten v. The State, supra.)
¶10*721The order and judgment of the district court will be reversed, and the cause remanded.