State ex rel. Chilcott v. District Court

MR. JUSTICE COOPER delivered the opinion of the court. This cause was tried in the district court of Carbon County on November 18, 1919, and resulted in a judgment for the plaintiff. The defendant appealed. On October 10, 1922, the judgment was reversed and the cause remanded for a new [59] trial. (Bush v. Chilcott, 64 Mont. 346, 215 Pac. 1001.) On November 28 following, after the remittitur had been filed in the court below, defendant for the first time moved that the plaintiff be required to furnish a bond for costs as provided in section 9807 of the Revised Codes of 1921. The record is silent as to why the motion was not made until after the cause had been returned to the district court for another trial. The matter was submitted to the trial court upon affidavits of counsel for the respective parties. After the plaintiff had offered proof tending to show that he was unable to furnish the security demanded, he was permitted by the court to prosecute the action as a poor person; its finding being that the plaintiff was unable to give security for the costs provided for in section 9807. Was the demand for security made too late? Sections 9807, [1] 9808 and 9809 appear in the Codified Statutes of 1871 as sections 559, 561 and 563 of the Civil Practice Act passed at the seventh territorial legislative session of 1871. They have been carried forward in the Code of Civil Procedure of the present day without any substantial change. A statute like this, requiring a nonresident, upon motion, to give security for costs, confers a personal privilege upon the defendant which may be waived by a failure to make demand at a seasonable and within a reasonable time after it comes to his knowledge that the plaintiff is a nonresident. (Sciutti v. Union Pac. Coal Co., 30 Utah, 462, 8 Ann. Cas. 942, 85 Pac. 1011.) The effect of a failure on the part of a defendant to require a nonresident plaintiff who was able to furnish security for costs as provided by section 9807, until the day of the trial, was considered by this court in Brazell v. Cohn, 32 Mont. 556, 81 Pac. 339. It was there held that because the nonresident plaintiff was not asked to furnish security for costs until the day the cause was set for trial, no previous demand having been made, the district court was justified in denying the stay until the bond for costs was given, on the ground that the application was too late. Mr. Justice Holloway, speaking for the court, said: “The court was justified in [60] denying the motion, and justified for the reason which it gave— that it came too late.” The supreme court of Utah, construing the language of the Codes of that state identical with sections 9807 and 9808, approves the rule announced by this court and quotes the comments in the opinion deciding the point. (Sciutti v. Union Pac. Coal Co., supra.) For an exhaustive note applying the rule of waiver at the various stages of the trial, see 8 A. L. R., note beginning on page 1510. Upon the ground that the defendant waited until the cause had been tried in the district court, appealed to this court and remanded for another trial, before he moved the court to require the plaintiff to furnish the bond provided for in section 9807, the writ is dismissed. Dismissed. Me. Chief Justice Callaway and Associate Justices Holloway, Galen and Stake concur.