Kettelle v. Wardell, 2 Ill. 592, 1 Scam. 592 (1839)

Dec. 1839 · Illinois Supreme Court

2 Ill. 592, 1 Scam. 592

Charles Kettelle, appellant v. Robert Wardell, appellee.

Appeal from, Peoria.

The security for costs required of non-residents, need not be in the precise words or form given in the statute.

A security for costs may be signed in the name of a firm.

This was an action of assumjssit commenced by the appellee in the Circuit Court of Peoria county, against the appellant. A motion was made in the Court below, at the May term, 1838, the Hon. Dan. Stone presiding, to dismiss the cause for want of a security for costs. The motion was overruled, and the cause submitted to the Court, and judgment rendered against the appellant for $202,16 damages, together with costs. From this judgment an appeal was taken to this Court.

The form of the instrument filed as a security for costs, as also so much of the case as is necessary to be stated in order to understand the points raised, appear in the opinion of the Court.

The errors assigned, are the following:

“ 1. There is no legal bond for costs, the plaintiff being a nonresident.

2. The instrument filed and purporting to be a bond for costs, is not in the form prescribed by statute.

3. The instrument filed does not set forth the title of the Court, nor the parties in the- cause.

4. The instrument is in the plural and not in the singular number, as prescribed by statute.

5. The instrument purports to be signed by Davis & DeWolf, the name assumed by a firm, and not by a single responsible person, as required by statute.

6. The obligors do not enter themselves security, &c., but only as security, &c.

7. The obligors do not acknowledge themselves bound to pay or cause to be paid, all costs, Sic. as prescribed by statute.”

H. P. Johnson, for the appellant,

cited R. L. title Costs 165-6; Gale’s Stat. 195; Warnock v. Russell, Printed Opinions 292.⁽¹⁾

G. T. M. Davis, for the appellee.

(1) Ante 383.

Lockwood, Justice,

delivered the opinion of the Court:

This was an action of assumpsit commenced by Wardell against Kettelle, in the Peoria Circuit Court. Previous to the issuing the summons from the Court below, the plaintiff in that Court filed in the clerk’s office, a precipe and instrument of writing to secure the costs, as follows, to wit, .

“ State of Illinois, Peoria county, sc.

Robert Wardell v. Charles Kettelle.

Action, Trespass on the case on promises. Damages, $500.

The Clerk of the Circuit Court in and for the county of Peoria, will please issue a summons in this entitled cause, directed to the sheriff of said county of Peoria, and returnable at the next term of said Court. Dated Alton, October 11th, 1837.

Davis & De Wolf, Att’ys for Pl’ff.

Same v. Same.

We do hereby enter ourselves as security for costs in this entitled cause, and acknowledge ourselves bound to pay all costs that may accrue either to the opposite party, or to any of the officers of this Court, in pursuance of the laws of this State-

Davis & De Wolf.”

At the next term after the commencement of the suit, the defendant below moved the Court to dismiss the cause for want of bond for costs, which motion was overruled. The assignment of errors questions the correctness of this decision.

The objections made here, are the same that were made to the security filed in the case of Linn v. Buckingham and Huntington, decided in December term, 1838.⁽²⁾ This Court then decided that an instrument entirely similar to the one filed in this case, was a sufficiept compliance with the statute requiring nonresident plaintiffs to file security for costs before commencing suit. The Circuit Court consequently decided correctly in refusing to dismiss the suit.

The judgment is affirmed with'costs.

Judgment affirmed.

(2) Ante 451.