D. M. V. Live Stock Insurance v. Henderson

Day, J.

— I. It is urged by appellant that, under section 3442 of the Revision, a foreign corporation only can be required to give security for costs.

i. practice : security^ior: c°st. The statute does not so read. It provides that, under certain circumstances, the plaintiff, if he be a non-resident of this State, or a corporation, shall file a bond for the Payment of the costs which may accrue. The language is plain and unambiguous. We have no warrant for the interpolation of a word, which would entirely change- its meaning.

2___. afficiavit. II. It is claimed that the court erred in permitting an amendment of the affidavit, in allowing it to be amended by erasure, intelineation and addition, and in considering the amended affidavit, inasmuch as it was not sworn to after the changes were made. We deem it unnecessary to consider any of these objections. We regard the original affidavit a sufficient compliance with the statute, and that if there was error in allowing and considering the amendment, it was error without prejudice.

Section 3442 of the Revision provides, that if a defendant shall at any time before answering file an affidavit, stating that he has a good defense in whole or in part, the plaintiff if he be a non-resident or a corporation, before any further proceeding in the cause, shall file in the Clerk’s office a bond, etc.

It is not required that the facts constituting this defense shall be set out in this affidavit. If such wei’e to be done there would be no propriety in requiring the affidavit to be filed *449 before answer. It would be better tbat tbe defendant should first be required to answer, in order that the court might from that determine whether the facts constituted a good defense. But the purpose of the section seems to be to arrest all proceedings, even the determination as matter of law by the court whether defendant has a good defense, until the bond required is filed. It is true § 3448 provides that the facts supporting the motion must be shown by affidavits. But it also provides that they may be responded to by affidavits. Now certainly it was not intended that the court should determine the truth of the facts constituting the defense; in other words, try the case upon affidavits, before passing upon the motion.

This section must refer to the condition of the plaintiff, as that he is a non-resident, a corporation, or has become a nonresident since the commencement of the suit. These facts may be controverted by the plaintiff.

But as to the defense, it seems to us that it is only necessary that defendant should, in the language of § 3442, file an affidavit stating that he has a good defense.

III. It is further objected that the affidavit does not in terms state that plaintiff is a corporation. This statement, under the circumstances of this case, is not necessary. The petition states that the plaintiff is a corporation duly organized under the laws of this State. The name fully indicates that plaintiff is not a natural person. If not a corporation, plaintiff has no right to maintain this action.

There can be no necessity that the affidavit should state that which, as against the plaintiff, appears conclusively of record.

3..-r:uonti: ing. IY. It is claimed that the court abused the discretion reposed in it, in that it did not allow further time for the preparation and filing of the bond. It does not, however, appear that plaintiff was in any way prej u-diced by this order. If the condition a'ffi circumstances of plaintiff were such as to render ■ further time necessary, and that fact had been made to appear to the court below, more time should have been given. But no such fact appears in the case.

*450

4. ——: affipeal.' ap Y-. It is further objected that the affidavit was sworn to .by defendant’s attorney, and not by defendant in person. Respecting this it is sufficient to say that whilst various objections were made in the court below, to the consideration of - the affidavit, the one now urged was not presented.

By pointing out specific objections, and omitting the mention of this, plaintiff must be regarded as having waived it, even if it be conceded to be a valid objection, which we do not now determine.

YI. It is further claimed that the court erred in dismissing the action on motion of defendant, after plaintiff had given notice of appeal.

5.-: apto secure161 missal. The notice of appeal was served on the day that the court ruled the plaintiff to secure the costs, and before the expiration of the time given for that purpose, Such an appeal was premature. It would be waived by complying with the order for securing costs. The dismissal of the action is the penalty which the law affixes to a disobedience of the ■ order. Revision, § 3443. Until plaintiff had positively indicated his election not to secure the costs, and had suffered the consequences of his refusal, he was not in a condition to appeal.

An order that plaintiff secure the costs, without more, is not an order from which an appeal can be taken. It does not fall under any of the provisions of § 2632 of the Revision.

YII. Lastly, it is urged that the court erred in dismissing the action without fixing a time, after the filing of the motion to dismiss, within which the bond should be filed.

The order of the court does not technically comply with the provisions of § -3443 of the Revision. Yet we think the cause should not, for that reason be reversed.

The court did, when it passed upon the motion for security of costs, fix a time within which the bond should be , filed, which elapsed several days before the motion to dismiss was filed. The whole course of plaintiff, as indicated in the premature service of notice of appeal, evinces a 'determination not to *451 file the bond, and shows that no substantial prejudice resulted from a failure' a second time to fix a period for filing it. •

The plaintiff might have had such time fixed if it had so desired, and had called the attention of the court to that fact.

If plaintiff had moved to set aside the order of dismissal, and had offered to file the bond, its standing here would be quite different.

"We discover no error, to plaintiff’s prejudice, in the record.

Affirmed.