Meade County Bank v. Bailey

California Supreme Court Oct 8, 1902 No. L.A. No. 1089.Published

Before: Van Dyke

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Holding. The court held that a foreign corporation must provide a cost bond in the amount and form prescribed by statute, and the court lacks authority to fix a different amount or dispense with the statutory requirements. Because the plaintiff failed to file the required undertaking within thirty days of the defendant's demand, the court properly dismissed the action.

Issues

Whether a court has the authority to fix a cost bond amount for a foreign corporation different from the amount prescribed by statute.
Whether the court properly dismissed the action for failure to file the statutory undertaking within thirty days of the defendant's demand.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the court has nothing to do with fixing the same. The statute vests in the defendant the right to have the bond, and the court cannot against his will deprive him of that right, or alter the amount or terms of the bond required.”

“Thirty days having elapsed in this case after the demand for security for costs, and no such undertaking having been given or filed, it was not error for the court to dismiss the action”

Synopsis

Action by Foreign Corporation—Security por Costs—Construction op Cons—Power op Court—Dismissal op Action.—In an action by a foreign corporation against residents of this state who demand security for costs and charges, under section 941 of the Code of Civil Procedure, the undertaking must be of the same nature as a cost bond upon appeal, that the sureties will pay such costs and charges as may be awarded against the plaintiff by the judgment, not exceeding three hundred dollars. The court has no power to fix a less sum, or to change the amount and condition of the bond fixed by the statute; and after the lapse of thirty days without the giving of the statutory bond, the action was properly dismissed.

VAN DYKE, J.

Plaintiff is a corporation organized and doing business under and by virtue of the laws of the state of South Dakota. Action was brought in the superior court of Los Angeles County against the defendants, upon a judgment obtained against them in said state of South Dakota. The defendant Parsons, upon being served, appeared in said action December 1, 1900, and on the same day gave and served notice on the plaintiff demanding security for costs. Thereafter, December 20, 1900, the plaintiff applied to a judge of said court, without notice to said defendant, to fix the amount of the bond, and the said judge thereupon by an

ex parte

order fixed said bond in the penal sum of fifty dollars. On the second day of January, 1901, the said defendant by his attorney served on the plaintiff and filed a notice of a motion to dismiss said action for want of the undertaking for costs as required by law; and after hearing upon said order to show cause, on the fifteenth day of January, 1901, the court entered an order dismissing said action.

The appeal is taken from such judgment dismissing the action in favor of defendant Parsons, for failure to file security for costs. The contention of the appellant is, that the bond filed in the sum of fifty dollars, as required by the

ex parte

order of said judge, was a compliance with the statute, and it was error, therefore, for the court to dismiss the action. The provision of the code on the subject is as follows: “When the plaintiff in an action resides out of the state, or is a foreign corporation, security for the costs and charges, which may be awarded against such plaintiff, may be required by the defendant. When required, all proceedings in the action must be stayed until an undertaking, executed by two or more persons, is filed with the clerk, to the effect that they will pay such costs and charges as may be awarded against the plaintiff by judgment, or in the progress of the action, not exceeding the sum of three hundred dollars. A new or an additional undertaking may be ordered by the court or judge, upon proof that the original undertaking is insufficient security,

[449]

and proceedings in the action stayed until such new or additional undertaking is executed and filed.” (Code Civ. Proc., sec. 1036.) The requirement in reference to this bond for costs against foreign corporations is almost in the exact language of the so-called cost bond on appeal. The undertaking on appeal is required to be executed by at least two sureties “to the effect that the appellant will pay all damages and costs which may be awarded against him on the appeal or on dismissal thereof, not exceeding three hundred dollars. ’ ’ (Code Civ. Proc., sec. 941.) :

Meade County Bank v. Bailey

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Synopsis

VAN DYKE, J.

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