Rankans v. Padgham

Security for costs — Non-resident plaintiff — Default—Judgment. "Where a non-resident plaintiff files security for costs upon an order therefor made upon the application of the defendant, the default of the defendant in not pleading, entered upon the same day the security is filed, is prematurely entered, and mandamus will lie to vacate a judgment based thereon, and to set aside the default.

Mandamus. Relator appeared specially in a suit commenced against him by a non-resident plaintiff by declaration, and moved to strike the declaration from the files for the reason that security for costs had not' been indorsed, as required by the statute. The motion was denied upon plaintiff’s filing security for costs. Thirty days had elapsed since the declaration was served, but proof of service was filed on the day the motion was denied. Defendant’s default for want of an appearance and plea was entered on the same day that the security for costs was filed, and made absolute under the rule, and judgment was rendered in favor of the plaintiff. Defendant moved to set aside the judgment and open the default, on the ground that the time to plead did not begin to run until the security for costs was filed. The motion was denied, and relator applied for 'mandamus to compel respondent to grant it.