Stinson v. Carpenter

McFarland, J. This is an action to recover damages for alleged slander. The action was commenced August 27, 1886. No undertaking for costs was filed by plaintiff before the issuance of the summons, as provided in the act of March 23, 1872 (Stats. 1871-72, p. 533, sec. 1); but four days later, on August 31, 1886, such a bond in due form was filed. Defendant appeared and demurred to the complaint; he afterward withdrew the demurrer and filed an answer; he once obtained a postponement of the trial on account of the illness of his counsel; and he consented that the trial be set for October 20, 1886. On October 20th, when a jury was in attendance for the trial of the case, defendant objected for the first time that an undertaking had not been filed in time, and moved to dismiss the action because the [572]undertaking was not filed “for several days after filing the complaint and issuance and service of summons.” Upon this ground the court granted the motion to dismiss the action, and entered judgment for defendant. Plaintiff appeals from the judgment.

Passing the question whether defendant had not waived any rights which he might have had in the premises, we think that the main question has been settled against him by this court in' Dixon v. Allen, 69 Cal. 527. In that case the court, referring to the failure to file an undertaking at the commencement of the action in a case of libel or slander, say: “The statute (Acts of 1871, p. 533, sec. 1) does not not deprive the superior court of jurisdiction in case the undertaking is not filed. The object of the statute is accomplished, if, when the objection is made, the undertaking is executed, and the defendant thus secured the costs and charges which may be awarded him.” In that case no undertaking was on file when the motion to dismiss was made; and the court held that it was proper to allow an undertaking to be then filed. In the case at bar an undertaking had been filed months before the objection was made. We think, therefore, that the court below erred in dismissing the action. This view of the case makes it unnecessary to examine the question whether the one hundred dollars counsel fee allowed by the statute to the prevailing party in a libel or slander suit should be put into the verified cost-bill.

Judgment reversed, with directions to the court below to deny the motion to dismiss the action.

Thornton, J., and Sharpstein, J., concurred.