1527-1534. Article I.-Security for costs. 1535-1551. Article II.-Taxation of Costs. 1552-1562. Article III-Items taxable as costs. "In any civil action filed in any court, before the clerk shall be required to issue any summons or other process thereon, there shall be filed, or on behalf of the plaintiff, a bond with one or more good. and sufficient sureties, at least one of whom shall be a resident of the county, or by some bonding company, conditioned that the plaintiff will pay all costs that may be adjudged against him, or in case the same cannot be collected from the defendant, if judgment be obtained against him that the plaintiff will pay the costs incurred by such plaintiff, provided, that in any case where the plaintiff has a just cause of action against the defendant, if by reason of his poverty he is unable to give security of costs, on affidavit of the plaintiff that such is the case, no bond or security shall be required. In probate actions the administrator or executor must pay the costs out of the first funds of the estate in his hands; and upon failure to do so shall be personally liable for such payment. In lieu of bond any party may deposit such sum as the clerk may deem sufficient from time to time, but in no case shall the party be requested to deposit more than ten dollars at any time: Provided, that no court clerk or deputy clerk shall issue any notice, summons, process or do any other act or incur other costs until he shall have funds in hand to pay all costs accruing by reason of same, and if ample costs are not on hand when the clerk is requested to issue such process or notice, he shall refuse to issue same or to do any act until funds have been deposited with him in such sum sufficient to pay all the costs accrued and which will accrue by reason of the act requested, unless bond for costs has been filed as provided herein: Provided, that nothing herein shall be construed to require a deposit for witness fees or mileage." 1 § 1528. Bond-Form A cost bond, in which, after naming the parties plaintiff and defendant, the obligors undertook to pay the costs upon substantially the conditions prescribed by the Code, is not invalid, though no obligee is named.2 A bond for costs is sufficient when subscribed by the obligors, though their names are not in the body of the obligation, and the bond is not invalid because the liability of the obligors is not fixed at a stipulated sum, where they bind themselves to pay all the costs as required by the statute." Where a clerk of the district court accepts and files a cost bond without objection and issues a summons, it will be deemed to be approved, in the absence of any evidence of disapproval.* It is not necessary that a plaintiff join in an undertaking given as security for costs. The bond is not invalid because the clerk fails to require the sureties to justify as to their qualifications." In mandamus proceedings to compel a municipal corporation to levy a tax to pay a judgment against it, a bond for costs is not re 1 Sess. Laws 1917, p. 404, § 1, amending Rev. Laws 1910, § 5222, effective June 14, 1917. 2 Obertino v. Fidelity Coal Mining Co., 124 P. 172, 87 Kan. 297, Ann. Cas. 1913D, 573. 3 Simpson v. Rice, Friedman & Markwell Co., 22 P. 1019, 43 Kan. 22. 4 Obertino v. Fidelity Coal Mining Co., 124 P. 172, 87 Kan. 297, Ann. Cas. 1913D, 573. 5 Simpson v. Rice, Friedman & Markwell Co., 22 P. 1019, 43 Kan. 22. quired, when such a bond has already been given in the original action, A board of county commissioners, as plaintiff in a civil action, is not exempted from the statutory requirement of filing a cost bond, or making a deposit in lieu thereof." The statute requiring plaintiff to give security for costs before summons shall issue in any civil action in the district court, is not mandatory as to the time, and the court in the exercise of its discretion may allow plaintiff to give such bond after motion by defendant to quash the summons. (Caption.) COST BOND Know all men by these presents, that we, -, and as principal, and -, as sureties, are held and firmly bound unto the defendant and to the officers of this court for the payment of any and all costs which may accrue in this action in this court or any other court to which this cause may be carried, in case the same are adjudged against the plaintiff, or if said costs cannot be collected from said defendant, for the payment of which costs we do bind ourselves and each of us, our heirs, executors, administrators, and assigns, jointly and severally by these presents. The condition of the above obligation is such that the above named principal and sureties are held and firmly bound for the payment of all costs herein in case the same are adjudged against them, or if the same cannot be collected from the defendant. Now, if the conditions aforesaid shall well and truly be made, then this obligation shall become void; otherwise, to remain in full force and effect. In witness whereof, we have hereunto subscribed our names this day of 19-. (Qualification of sureties.) Principal. • Stevens v. Miller, 43 P. 439, 3 Kan. App. 192. 7 Stegman v. Abbe, 54 P. 917, 8 Kan. App. 860. Fowler v. Fowler, 82 P. 923, 15 Okl. 529. § 1529. Deposit A cash deposit may be made in the place of a bond, and this is the usual method followed by litigants. § 1530. Pauper affidavit-Form Sometimes an affidavit is filed that the plaintiff believes his cause is just and that by reason of his poverty he is unable to give security for costs. The pauper's affidavit provided for in the statute shall be in the form following, and attached to the petition, viz.: "State of Oklahoma, County. In the District Court of Said County. I do solemnly swear that the cause of action set forth in the petition hereto prefixed is just, and I do further swear that by reason of my poverty, I am unable to give security for costs." " 20 The statutory provisions, which dispense with giving security for costs where plaintiff, having a just cause of action, is shown by affidavit to be unable to give such security for costs, apply to infant plaintiffs as well as to adults,11 and shall as well apply to a party suing in a representative capacity.12 A poverty affidavit in the form prescribed by statute, sworn to before a notary public and filed with the petition in the office of the · clerk of the district court, is a substantial compliance with the statute providing for an affidavit "made before the clerk." 13 Where plaintiff files a pauper's affidavit in lieu of cost deposit or bond, the court, on proper application and where it appears that plaintiff was able to make a deposit or give bond, may require him to do so within reasonable time, and, on his default, may dismiss action.14 9 Woods v. Bond, 116 P. 801, 29 Okl. 241; Carr v. Osterhout, 4 P. 318, 32 Kan. 277. 10 Rev. Laws 1910, § 5223. 11 Missouri Pac. Ry. Co. v. Cooper, 45 P. 587, 57 Kan. 185. 12 Cherokee & P. Coal & Mining Co. v. Britton, 45 P. 100, 3 Kan. App. 292. 13 City of Hiawatha v. Warren, 55 P. 484, 8 Kan. App. 209. 14 Fried v. First Nat. Bank (Okl.) 176 P. 909. Code Civ. Proc. § 581, provides that no summons shall issue in any case in the district court until the plaintiff has given a bond for costs, provided that, when he shall make affidavit that he has a just cause of action, and is unable to give security by reason of his poverty, no bond shall be required. The Justice's Acts, § 185, provides that the provisions of the Code of Civil Procedure which are in their nature applicable, and in respect to which no special provision is made, shall be applicable to proceedings before justices of the peace. Section 186 provides that, when the plaintiff is a nonresident Dismissal of action on failure of plaintiff to comply with order for additional security for costs is within the discretion of the trial court, notwithstanding affidavit of poverty by plaintiff.15 Where both parties appear, and announce "Ready for trial," and both introduced evidence, and a verdict is rendered in favor of plaintiff, the rulings with reference to the form of the poverty affidavit will not be reviewed,16 There is no error in permitting plaintiff to file an amended poverty affidavit, under the Code, when his attention is called to the fact that the affidavit filed at the commencement of the case does not comply with the statutory requirements.17 of the county, the justice shall, and, in other cases, he may, require the plaintiff to give security for costs. Held, that section 581 applied to justices' courts, and that, where the plaintiff made the affidavit required thereby, the justice could not demand security for costs. Barnett v. Lark, 25 P. 869, 45 Kan. 428. 15 Gieseke v. Walthall, 123 P. 716, 87 Kan. 84. The plaintiff, who procured service of summons by publication, failed to file a cost bond, but filed a poverty affidavit, as authorized to do under Comp. Laws 1879, § 4113, sworn to before a justice of the peace. The defendant moved to set aside the service, because the poverty affidavit was not "made before the clerk," as required by the statute, which motion was overruled; and the court at the same time "further ordered that said defendant have leave to renew said motion, unless a sufficient affidavit of poverty is filed by plaintiff herein on or before January 21, 1885." Before January 21, 1885, the plaintiff filed a sufficient poverty affidavit; and the court assumed jurisdiction of the case, and rendered judgment therein. Held, that no error, on account of insufficiency in the poverty affidavits, was committed. v. Hoeburg, 13 P. 275, 36 Kan. 263. Cole After plaintiff had given security for costs as required by Civ. Code, § 581, he was required by the court to give a further bond, the first bond being insufficient to cover the accumulated costs. Plaintiff then deposited $15 with the clerk, under a proviso of section 581 that a resident plaintiff may deposit $15, "which sum shall be in lieu of all security for costs as herein and otherwise provided." Afterwards plaintiff made the affidavit of poverty under another proviso of section 581, which is that in any case where plaintiff, having a just cause of action against defendant, by reason of his poverty, is unable to give such security for costs, on affidavit of plaintiff made before the clerk that such is the fact, no bond shall be required. Held, that plaintiff could not be required to give additional security. Hardesty v. Ball, 26 P. 959, 46 Kan. 555. 16 Dennis v. Benfer, 38 P. 806, 54 Kan. 527. 17 City of Atchison v. Riggle, 49 P. 616, 6 Kan. App. 5. (1481) |