OF THE STATE . OF ARKANSAS. 247 LITi'LE • ROCK; July, 1838. MEANS vs. CaosNELL WILLIAM 13. MEANS against CuomwtmL AND GUTIIILEV. • Tina CUTIIREY. APPEAL from Jackson Circuit Court. By the laws of this State, if a non-resident plaintiff fails to file a bond for costs when he institutes his sUit, or if a resident plaintiff becomes non-resident afterthe inStitution of his suit, and fails to file a. bond for costs, after the defendant or the officer of the court has taken the proper steps to compel him to do so, the defendant . may take advantage ef it, either by plea in abatement, or motion founded upon the affidavit and notice mentioned in the Statute: And the clerk or sheriff may move to ilismiss on notice without affidavit. When the objection is taken by a motion,-the plaintiff may file his bond at an. time before the motion is actually Made in court, and proceed 'With his suit. The omission to file a bond for costs, is .roatter in abatement only, where a non-resident sues. If the .plaintiff becomes non-reSident after the com-meneement of his snit, it may be pleaded in abatement 'p sis darrein contin-uame. And when such plea in abatement is filed, the plaintiff cannot sub-al:f l uentl y filehis boud for costs, but must 010 issue on the plea.. The want of a. bond for costs cannot be taken advantage of by motion, without affidavit or notice. This was an action ol , debt commence& in the conrt be/ow by the appellant against the appellees, to May Term, 183 , 8. At the return term the appellees moved to dismiss the suit; because the:plaintiff - was a non-resident of. the State at the time of commencing - the suit, and no bondfor costs was filed at or before the commencement . of the .suit. These facts being proven, the court sustained the motion, andthe suit was dismissed, from which judgment of dismissal an appeal was taken. HAGGARD, for the appellant: It will be seen that any lawyer may issue writs, &c. See McCamp-bell's Digest, 3 • 4, at top of page; and section 5, 6, 7, and 7, Judicial Proceeding s , that if costs are secured to officers, &c. the object of the law is complied with. The statute as to costs is remedial, and, therefore, should be construed liberally. It is wholly immaterial Whether the bond is filed or dated, provided it is in time foc an indemnity, and a recovery can be had upon it. That a recovery could be effected uPon the bond taken in this cause, seems to the counsel most clear.— Then, it was error in the court to dismiss the suit. The record is very inartificiall y made out: no date given to the judgment. The bond is made a part of the record. If the judgment should be affirmed the
: 248 CASES IN THE SUPREME COURT : Costs will' be colletted from the Obligors in the bond for costs.. The July. 1838: bond should be either:available, or void in' toto. If void ab initio, it is .M,BANS no office paper, and 'no recovery can be effected on it. It would be 6a. or:Liz. no answer to an action on said bond, to ' say that it was dated and filed Owl-nail% after the impetration of the suit,.and therefore. void. Such bonds are recognized; and , while they are in full force, the suit Cannot be dis-thissed on: account of the date of them. Haerat • in litera; haerat in :tortice. The judgment should be reversed. RINGO, Chief Astice, delivered the opinion of the court: This is an action of debt brought by .Means against Cromwell And Guthrell,in tho Jackson Circuit Court. The ,declaration was filed, and writ issued on the 26th day of April, 1838,:returnable to the next May Term of said court. - At the return of the writ, the defendants moved the court to dismiss' the suit, on the ground that the plaintiff was a non-resident of . this Stnte, at the 'time the suit was instituted, and.did not tile , with the Clerk before the insti-. tUtiOn thereof,. a bona with security fbr costs,' as required . by law. This motion the court entertained', and thc facts being established, dismissed the . case.• and . reridered .. kidgment for tests against the plaintiff:— Whereupon the plaintiff appealed, and has prosetuted his appe0 to -this court. The eriors'aSSigned by the appellant present two questions for the Consideration and decisioaef . this court: 1st, Did . the court err in 'dismissing the suit on motion, without either , plea or affidavit ? 2d, Did -the-court . err in deciding that a bond for costs, filed and dated after the instinitiOn of the suit,'but before the .trial, did not entitle the plaintiff • to . maintain . his Suit -against'the -defendant? The act of July 341807, provide that "in all cases where the " plaintiff resides Out of • this Territory, -in gui tam actions, in suits on administration bonds, office bonds, and the defendant making affidavit that he has a jtist, cause of defence against the , whole of the' plaintiff's demand,.the conrt in whiCh such suit is commenced may grant a rule that the 'plaintiff giye security for Costs at the next term;, and for. want of 'security the court May, on !notion, order judgment of nOnsuit to be entered." : .4rkau,sas Dig. 315. The act of the ,7th 'November, 1808,.contains the following provisions—that '"every person . who shaffnot be resident within this Territory shall,- :before institute's auy . suit la the courtS of this Territory,
OF THE STATE OF ARKANSAS. 249 file, or catise to-be filed, a bond with sufficient security, with the Clerks of the colitt Where his suit is . instituted, for the payment of all costs NY. 1838' which may accrue in said suit; and if at any time after the commence- MEANS nient of a suit by a resident, he should become non-resident Of this es..0:Li,t, and Territory; it shall be the duty of such suitor to file his bond as afore- GuTnierY• said ;- --and it shall be lawful for the defendant, or the Clerk or Sheriff in the court in which such suit is hrought, to give at least one month's notice to the plaintiff aforesaid, his known agent or attorney, that a motion will be made to dismiss the suit from the docket, provided bond and security for costs is not filed, and in case of neglect or refusal to comp/y With such notiee, it shall be the duty Of' every court on motion to dismiss such suit. "If, at any time, a court shall be satisfied,that the plaintiff is unable to pay the costs of suit, or that he is so „ unsettled as to endangeithe officers of the court with respect to their ' l.,..gal demands, it shall be lawful for the court to direct that a notice should be served on such plaintiff, his attorney, or agent, requiring him to file a' bond with security for costs, on default of which his suit shall be dismissed." Arkansas Dig. 315. These provisions of law are obviously intended to accomplish the clout& purpose of secdring the defendant, and , the Clerk and the Sheriff, in the court where the suit is instituted, against hazard or loss, arising either from the fact of the :plaintiff's non-residence in the State, at or after the time nf the institution of the suit, or from his Unsettled condition, or his inability at any time to pay the costs of suit, for which he may be liable; and protecting the plaintiff from veation or surprise, by imposing upon the defendant, if he makes the motion, the necessity of supporting his motion by affidavit, stating that be has just cause of defenee to the whole of the/plaintiff's demands, and ‘ requiring in all cases, at least one month's notice of the motion; to be given to the plaintiff, his known agent, or attorney. With a view to the former, every non-resident plaintiff at the time of the institution of his suit, is expressly required to file a bond, with sufficient security for the payment , of all costS which may accrue in the suit, before he institutes any. Suit in the eoUrts of this State. And a resident plaintiff hecoming non-resident after the institution of his Suit, is in like manner expressly required to file a similar bond. And in either case, ,: u pon the failure of : the plaintiff to comply:with the requisitions of the Statute, the defendant may 'avail himself of the default,
250 CASES IN THE SUPREME COURT IALE either by a regular p . lea in 'abatement, setting forth the facts on July, lo g . Oath; and filed ill due time, or . hy a mOtion to disMiss , the suit from the -11 EANS dOCket, founded on hiS affidavit stating " that he has a just cause of cRo i v v;:L . L •defenee- against the whole of the plaintifrs.demands," and a notice of such motion GUTHRICy. served on the plaintiff, .or his known agent, Or attorney,. • at /east one month previous to the motion being made; and the Clerk or Sheriff may, upcin the like notice, without affidavit, make a motion to dismiss; but in either case, when the objectititi is taken by a motion to distniss, the plaintiff is authorized by a just and liberal construction of the statutoryprovisions before recited, to file his bond with security, at any time: before the motion is actually made in court, and if the bond be good and the security sufficient, the court is: bound to receive it, and the plainfiff is at liberty to proceed with his suit; but if no bond is filed, or the bond or security, if one be filed, is insufficient, the suit niay, upon affidavit and notice, or notice simply,if at the instance of the Clerk or Sheriff, be dismissed on Motion. By thisconstruction, effect is given to the several provisions of the before recited acts of 1807 and 1808, passed in pari materia, and the appareat conflict between therri obviated, and the policy and objects .of both maintained and enfOrced. The tribunals of justice are open equally to residents and non-residents, and although the language of the Statute is express and imperative, yet the disability imposed by it upon persons; non-residents in the State, is in its character„temporary and personal, it neither impairs. his right of action, or prohibits. the court from exercising jurisdicution in the case; but merely suspends his right to sue in the courts of the country, until he shall become a resident of ,the State, ot file a bond with security for the payment of the Costs of his suit. In every point of view, therefore, in which it can be considered, it is meter in abatetnent Only, and must be so regarded. Hopkins vs. _ Chambers, Sic. 7 .Monroe, 204; 1 Chitty, 479, 480. - Andithetefore, it is, that the defendant may take advantage of it by plea in abatement for, and, on account of, the disability of the plaintiff to sue without having filed bond and security for costs, when he was non-resident, at the time of the institutiontf his suit; and for the like reason, if he w resident at the peiiod of the institution of his suit, but afterwa be-comei non-resident of the State, without filing bond witserity for casts, as required ty the Statute. This may , be pleadedin abatement, puis darreir continuance, in like manner as the death of a sole plaintiff, •
OF THE STATE OF ARKANSAS. 21 or any other disability to prosecute the suit arising 'after the. comMence-, LITTLE , . ROCK, ment thereof; . -and thisis, in the OPinion of the 'court, ' the most'certain, h ily ; 1838. -efficient, and approvectmethod of taking advadtage of the Omission . MEANS vs. of the plaintiff to file bond with . security for costs, as required by l a w. ..,110111{riLL By adopting this practice, the plaintiff would be deprived , or the -uTiti■oor. advantage of subsequently filing the bond, allowed him on the motion to dismiss, and would be driven necessarily to take isSue, either upon the fact of his non-residence, or his'having filed the bond; as. required by the Statute before the institution of the • suit,. 'Or before he removed from the State, if he was resident therein when the suit was Commenced. Tones vs. Lacy, 3 J. J. Marshall, 543. We are aware that a different practice has prevailed in this country, and that motions to dismiss, for the failure by non-resident plaintiffs to file bond with security for costs, before the institution of their suitS have been generally entertained, without either affidavit or notice but this practice, however it may have been indulged; or permitted by the-Courts, is, in our opinion, repugnant to the letter as well as the *spirit of the law, and entirely subversive of itS mOst wise' arid salutary provisions „ . We are, therefore, of opinion, that the Cirenit Court did . err . in dismissing the suit, on the motion of the defendantsoo affidavit having' been made, or notice of- the motion given to the . .plaintiff, his known agen ' t or attorney, as reqUired by law; and for this error; the . jadg-ment must be reversed with costs; the cause remanded to . the Jackson Circuit Court, and reinstated on tile docket of "said court, for - further proceedings to be there, had, according JO law,. add riot intOnsistent with this opinion. The same opinion and judgment were given in the case . of William B. Means against William Nall; as in the foregoing case ; -.the points in the case being precisely the same.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.