White v. Stafford, 1 Ill. 67, 1 Breese 67 (1823)

Nov. 1823 · Illinois Supreme Court

1 Ill. 67, 1 Breese 67

Baynard White, Appellant, v. James Stafford, Appellee.

APPEAL FROM GREENE.

If a non-resident gives a bond for costs, after the commencement of the suit but before the trial, it is sufficient.

Stafford, who it appears was a non-resident, brought a suit in the circuit court of Greene, against White, to which White pleaded in abatement, that the plaintiff was a non-resident, and that he had not given a bond for the costs, as the law required. The plaintiff replied to this plea, that although he had not executed a bond at the time of the commencement of the suit, yet at a certain day afterward, and before the trial, he gave bond with security, which the clerk approved. To this replication the defendant demurred, which the court overruled—from which decision the defendant appealed.

Opinion' of the Court by

Justice John Reynolds.

The question presented by the pleadings in this case is, was the security given by the plaintiff, a sufficient compliance with the statute requiring a bond to be filed by a non-resident, for the costs, before the commencement of the suit ? The filing of this bond, can not be said to be a literal compliance with the statute, but surely it answers the object which was intended by it—the ends of justice are answered. The defendant can not complain. In some cases, neither the clerk or attorney may know the plaintiff to be a non-resident when the suit is commenced ; in such cases, it would be hard to turn the plaintiff out of court, to answer no good purpose. In construing statutes, the intention of the legislature must be gone into. 6 Bacon, 884. The object of the legislature was to secure all parties in their costs, when a non-resident commenced a suit; this is answered in the present casé, and the judgment must therefore be affirmed. ^(a), ⁽¹⁾.

Judgment affirmed.

(a) Vide Rev. Laws of 1827, title, “ Costs.”

(1) The statute in force when this decision was made was as follows : “No suit shall hereafter be commenced in any court within this state, by any person who is non-resident, or who is not a freeholder in this state, or householder, until he shall file in the clerk’s office, a bond with security, who shall be a householder and resident in the state, conditioned for the payment of all costs that may accrue in consequence thereof, either to the opposite party, or to any of the officers of such courts, which shall be in the form, or to the purport following,” &c. Laws of 1819, p. 150. The present statute, after providing substantially as above so far as relates to non-residents, adds : “ If any such action shall be commenced without filing such instrument of writing, the court, on motion, shall dismiss the same, and the attorney of the plaintiff shall pay all costs accruing thereon. Purple’s Statutes, p. 275, sec. 2. Scate’s Comp., p. 244. Under this statute it has been held in the following cases, that where an action was commenced by a non-resident without giving security for costs, the suit must be dismissed. Hickman v. Haines, 5 Gilm., 20. Ripley v. Morris, 2 Gilm., 381. In the last case a cross-motion was made for leave to file a cost bond at the^time of entering the motion to dismiss, which was refused.

A motion to dismiss for want of security for costs, is a dilatory motion, and must be made at the earliest opportunity. Edwards et al. v. Helm, 4 Scam., 142. Robertson et al. v. County Com’rs., 5 Gilm., 559. Adams v. Miller, 12 Ill., 27. Id. 14 Ill., 71.

If a bond for costs is objected to as insufficient, it is incumbent on the party-presenting it to satisfy the court by competent proof that it is sufficient. Buckmaster v. Beamer et al., 3 Gilm., 97.

On an application for security for costs, the affidavits of the respective parties may have equal weight. Hamilton v. Dunn, 22 Ill., 259.

The pendency of a motion for security for costs in a suit pending on mechanic’s lien,-will not necessarily excuse a party for not filing an answer; nor will such motion prevent the rendition of a decree pro confesso. Id.