Any person willfully swearing falsely in making the pauper affidavit "shall, on conviction, be adjudged guilty of perjury, and punished as the law prescribes.' § 1532. Additional security "" 18 "In an action in which security for costs has been given, the defendant may, at any time before judgment, after reasonable notice to the plaintiff, move the court for additional security on the part of the plaintiff; and if, on such motion, the court be satisfied that the surety has removed from this state, or is not sufficient, the action may be dismissed, unless, in a reasonable time, to be fixed by the court, sufficient security be given by the plaintiff." 19 Where a party attempts to comply with the law in giving a cost bond, the cause should not be dismissed for defects therein until the party is given an opportunity to give proper security.20 A plaintiff may, by showing his inability, through poverty, to comply with the rule requiring him to give additional security for costs, excuse himself therefrom, and it is not error for the court in such case to relieve him from a compliance with the rule and permit him to proceed in the cause.21 Where plaintiff brought an action for the benefit of certain parties on an indemnity bond given plaintiff as constable in attachment proceedings and was permitted to amend the petition to allege a cause of action in his own name, it was not necessary for him to file a new cost bond and procure a new summons.22 18 Rev. Laws 1910, § 5224. 19 Rev. Laws 1910, $ 5225. 20 Obertino v. Fidelity Coal Mining Co., 124 P. 172, 87 Kan. 297, Ann. Cas. 1913D, 573. 21 Huey v. Brimer, 58 P. 485, 9 Kan. App. 149; Gieseke v. Walthall, 123 P. 716, 87 Kan. 84. Code Civ. Proc. § 584, investing a district court with power in its dis cretion to dismiss an action on failure of plaintiff to comply with an order for additional security, should be considered in connection with the other provisions of the Code exempting persons unable, by reason of poverty, to give security from any such requirement, and it is an abuse of discretion to dismiss the case where because of such poverty the security could not be given. Stevens v. Sheriff, 90 P. 799, 76 Kan. 124, 11 L. R. A. (N. S.) 1153; Same v. City of Anthony, 90 P. 800, 77 Kan. 839. 22 Armour Packing Co. v. Orrick, 46 P. 573, 4 Okl. 661. § 1533. Failure to give security A lawyer prosecuting an action for a contingent fee is under no legal or moral obligation to give security for costs, when the client is ordered so to do and is unable to comply with the order, and the action should not be dismissed for the inability of the client to comply with the order or by reason of the neglect of his attorney so to do.23 Where plaintiff sues under the district court procedure and fails to give security for costs before the summons issues, the remedy of the defendant is by special appearance and motion to quash the summons, and not by motion to dismiss.2 24 § 1534. Remedies against sureties -Form of motion "After final judgment has been rendered in an action in which security for costs has been given, as required by this article, the court, on motion of the defendant, or any other person having a right to such costs, or any part thereof, after ten days' notice of such motion, may enter up judgment in the name of the defendant or his legal representatives, against the surety for costs, his executors or administrators, for the amount of costs adjudged against the plaintiff, or so much thereof as may be unpaid. Execution may be issued on such judgment as in other cases, for the use and benefit of the persons entitled to such costs." 25 Where an execution is issued reciting a judgment in favor of the plaintiff for so much costs, and on this execution a sale is made to a stranger to the action, his title will not be defeated by the mere fact that the journal entry of the judgment fails to state the amount of costs taxed. In the absence of the appearance and judgment dockets, it will be presumed that the costs were properly taxed on them, and that the amount stated in the execution is correct.26 Judgment may be entered against sureties on a cost bond on motion by any person having a right to any part of the costs.27 23 Stevens v. Sheriff, 90 P. 799, 76 Kan. 124, 11 L. R. A. (N. S.) 1153; Same v. City of Anthony, 77 Kan. 839, 90 P. 800. 24 Fowler v. Fowler, 82 P. 923, 15 Okl. 529. 25 Rev. Laws 1910, § 5226. 26 Merwin v. Hawker, 1 P. 640, 31 Kan. 222. 27 Dabney v. Comes, 131 P. 150, 89 Kan. 299. In an action on the cost bond, where plaintiff alleged that the penalty of the bond as executed was $2,500, and asked a recovery in that sum, and it MOTION FOR JUDGMENT AGAINST SURETIES FOR COSTS (Caption.) Comes now the above named defendant, C. D., and shows to the court that at the commencement of this action, the said plaintiff, A. B., filed herein his bond for costs, with G. H. and M. N. as sureties; that on the day of 19, judgment was entered for this defendant in said cause, and said defendant was awarded costs herein in the sum of $ Wherefore said defendant moves the court to make and enter an order and judgment herein in the name of this defendant, C. D., and against the plaintiff, A. B., and against said sureties, G. H. and M. N., for said sum of $- and that execution may be issued thereX. Y., Attorney for Defendant. on. appeared on the trial that the bond as executed was in the penal sum of $1,500 only, no recovery could be had without an amendment of the declaration so as to make it correctly describe the bond, though the alteration was made by a stranger without plaintiff's knowledge. Chicago, K. & W. R. Co. v. Evans (Kan. Sup.) 46 P. 303, 57 Kan. 286. (1484) 1539. Prevailing party. Costs that may be taxed at discretion of court. 1541. On motions. 1547. Effect of tender or offer to confess judgment. 1549. Costs Corporations-Involuntary dissolution. 1551. Costs on interplea. § 1535. Right to award Before costs are awarded, some warrant therefor must be found in the statute.28 Attorney's fees may be allowed without proof of the value of the services, where they were rendered in presence of court.29 The act of the court in retaxing certain costs, while correcting the journal entry to make it speak the truth, is not error.30 When an order taxing costs on account of witnesses from another county is made in the absence of a party affected, his remedy, if aggrieved, is by motion to retax.31 The state or a county is only liable for costs when such liability is expressly created by statute.32 "The several clerks of the district court shall tax the costs in each case, and insert the same in their respective judgments, subject to retaxation by the court, on motion of any person interested." 33 28 Warner v. Warner, 112 P. 97, 83 Kan. 548. 29 State v. Glass, 160 P. 1145, 99 Kan. 159. 30 Locke v. Cope, 146 P. 416, 94 Kan. 137. 31 Wallingford Bros. v. McCray, 165 P. 813, 101 Kan. 146. 32 Board of County Com'rs of Greer County v. Watson, 54 P. 441, 7 Okl. 174. 33 Rev. Laws 1910, § 5234. § 1537. Costs where defendant disclaims "Where defendants disclaim having any title or interest in land or other property, the subject matter of the action, they shall recover their costs, unless for special reasons the court decide otherwise." 9934 § 1538. Costs go with judgment "Where it is not otherwise provided by this and other statutes, costs shall be allowed of course to the plaintiff, upon a judgment in his favor, in actions for the recovery of money only, or for the recovery of specific, real or personal property." 35 In an action to recover money only, it is error to give judgment against defendant for costs unless judgment be rendered for plaintiff in some amount.3 36 Plaintiff in an action for possession under a chattel mortgage, who obtains a judgment reduced by the allowance of defendant's counterclaim, is the prevailing party, and is entitled to a judgment for costs.37 In an action for the recovery of 26 acres of real property, in which judgment is rendered in favor of plaintiff for two acres thereof, plaintiff is entitled to recover all his costs.38 39 Where a note secured by a mortgage is allowed in the county court, against the estate of the maker, and the land described in the mortgage is sold, and out of the proceeds the administrator pays the note in full, with interest, the holder cannot recover costs in an action in the district court on the note and mortgage commenced after he had made application in the probate court to sell the land.3° Where a creditor of a corporation proceeds against a stockholder under the statute making the stockholder liable to creditors for the full amount of his stock, and the stockholder contests his liability, it is not error to tax the costs of the proceeding against him when the contest is decided against him.40 34 Rev. Laws 1910, § 5227. 35 Rev. Laws 1910, § 5229. 36 Ranson v. Capron Hardware Co., 56 Okl. 278, 155 P. 1166. 37 Bank of Buffalo v. Crouch (Okl.) 174 P. 764. 38 Meskimen v. Day, 10 P. 14, 35 Kan. 46. 39 Graham v. Graham, 17 P. 152, 38 Kan. 440. 40 Abbey v. Long, 24 P. 1111, 44 Kan. 688. |