Roberts v. Fahs, 32 Ill. 474 (1863)

April 1863 · Illinois Supreme Court

32 Ill. 474

Roberts et al., Trustees, &c., v. Fahs et al.

1. Bond fob costs—non-resident plaintiff in error. The statute requiring non-resident plaintiffs to file a bond for costs before commencing their suits, applies in the case of a writ of error sued out of the Supreme Court.

2. Order of proceedinss—of the time within which to object that no bond, for costs is given. A motion to dismiss a cause upon the ground that a non-resident plaintiff has commenced his suit without having filed a bond for costs, is in apt time if interposed before the time has passed for pleading in abatement.

Note.—The foregoing motion was decided at the November Term, 1863.

Writ of Error to the Circuit Court of Wabash County.

After a rule to join in error had expired, but before a default was asked for non-joinder, the defendant in error filed an affidavit that the plaintiff in error was a non-resident of this state at the time this writ of error was sued out, and that no bond for costs has been filed, and thereupon moved for a rule upon the plaintiff to show cause why the writ should not he dismissed.

Per Curiam :

The statute is imperative, that if a non-resident plaintiff shall institute his suit without first having given a bond for costs, “ the court, on motion, shall dismiss the same.” Scates’ Comp. 244. A writ of error is considered as a new action, and the statute applies to all suits instituted in the Circuit or Supreme Court by non-resident plaintiffs. Ripley v. Morris, 2 Gilm. 382; Hickman, v. Haines, 5 id. 20.

The motion is in apt time. It is made before the time has passed for pleading in abatement, which is sufficient. Trustees v. Walters, 12 Ill. 154; Randolph v Emerick, 13 Ill. 346.

The rule will he entered. Rule nisi.

Afterwards, the plaintiff having failed to show cause against it, the rule was made absolute.