Cook v. Caraway

The opinion of the court was delivered by Horton, C. J.:

Section 1, chapter 121, Laws of 1875, provides: That in any civil action brought in a district court of the state, before the clerk shall issue summons there shall be filed in his office, by or on behalf of the plaintiff, a bond, to be approved by the clerk, conditioned that the plaintiff will pay all costs that may accrue in the action, in case he shall be adjudged to pay them, and that he will pay all costs made by him, in case the same cannot be collected from the defendant, if judgment be obtained against him; provided, if the plaintiff have a just cause of action, and by reason of his poverty he is unable to give security for costs, upon- filing an affidavit to that effect no bond shall be required. Sec. 1, ch. 13, Comp. Laws 1879, reads:

“That no state or county officers, or their deputies, shall be taken as surety on the bond of any administrator, executor, or other officer, from whom, by law, bond is or may be required, and no practicing attorney shall be taken on any official bond, or bond in any legal proceedings as aforesaid, in the district in which he may reside; and if any such officer or deputy is surety in any such bond filed in any office provided by law for the deposit thereof, such officer with whom ' such bond is filed shall, within thirty days from and after the taking effect of this act, notify the principal on such bond *43 to give additional security, which shall be approved as the law requires.”

In Sherman v. The State, 4 Kas. 570 , it was held, that where a practicing attorney signed a recognizance for the appearance of a prisoner, he could not avoid judgment thereon by reason of the statute prohibiting officers, of the law from taking a practicing attorney as surety. That decision was based upon the doctrine that an attorney ought not to escape a legal responsibility voluntarily assumed by him, and thus obtain an advantage by his own wrongful act. The question before us is one of a different character. The attorneys upon the bond are not here interposing their office in avoidance of the obligation. The defendant below (plaintiff in error) excepts to the validity of the bond, because'it was taken by the clerk in violation of the statute. We think he has the right to so intervene, and ask that the summons shall be quashed and set aside, because the bond required by law has not been executed. This conclusion in no way conflicts - with the decision of Sherman v. The State, supra, and gives the statute full force where exception is taken at the first opportunity, by a party interested in the bond.

The ruling and order of the district Court will be reversed, and the cause remanded with direction to the court below to quash and set aside the1 summons.

All the Justices concurring.