NEIDHART v. COLLINS, 46 Idaho 759 (1928)

271 P. 321

HENRY S. NEIDHART, Appellant, v. H. A. COLLINS, Respondent.

No. 5014.Supreme Court of Idaho.
October 19, 1928.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.

Action for debt. Appeal from judgment dismissing action on failure to furnish cost bond requested on ground of nonresidence. Affirmed.

Walter H. Anderson, for Appellant.

The court was only authorized to dismiss the action upon the ground of nonresidence of the plaintiff. That was the only ground of the demand. (C. S., sec. 7221.)

This sort of a motion or proceeding is not favored in law. (Twinning v. Martin, 65 Ill. 157.)

Page 760

It takes but slight evidence to overcome a prima facie case of the party making the motion. (Twinning v. Martin, supra.)

Ben W. Davis, for Respondent.

The giving of an undertaking for costs, where a plaintiff is a nonresident, is mandatory, and no further proceedings can be had until the undertaking is given; and in the event an undertaking is not given, especially after ample opportunity has been afforded plaintiff, the court may dismiss the cause. (C. S., sec. 7221; Kissler v. Budge, 24 Idaho 246, 133 P. 125 Duff v. Eardley, 32 Idaho 735, 187 P. 1081; Meade County Bank v. Bailey, 137 Cal. 447, 70 P. 297.)

The filing of the demand for costs is not necessary; service is all that is required. (3 Bancroft’s Code Prac. Remedies, p. 2826, sec. 2133; Wall v. Hunter, 57 Cal.App. 759, 207 Pac. 934.)

The filing of a positive affidavit as to nonresidence is sufficient, and in fact no affirmative showing in the first instance is necessary. (Gadette v. Recorder’s Court, 53 Cal.App. 72, 199 P. 817.)

GIVENS, J.

An action was brought by appellant against respondent in the justice court and was appealed by appellant to the district court wherein the then defendant (respondent here) moved, under C. S., secs. 7221, 7222, that the plaintiff therein (appellant here) be required to furnish a bond to secure costs, and in support of such motion filed an affidavit of his attorney on information and belief that the plaintiff was a nonresident of the state of Idaho. Plaintiff in opposition thereto filed an affidavit of his attorney, which was, in effect, likewise on information and belief, because it stated in substance that the plaintiff was temporarily absent from the state but intended to return and was a local resident. No security being filed, the district court, in compliance with the statute, dismissed the action.

Page 761

The two affidavits constitute the record in the matter and from these it cannot be said that the trial judge abused his discretion or erred in finding in favor of the defendant.

The judgment is affirmed. Costs awarded to respondent.

Wm. E. Lee, C. J., and Budge and Taylor, JJ., concur.