Opinion
No. 928
Opinion Filed July 11, 1911.
COSTS — Security — Deposit. Where, in a suit in the district court, plaintiff, a resident of the county in which the suit is brought, before the summons issues, deposits with the clerk of the court $15 as security for costs, pursuant to Wilson's Stats. of Okla. 1903, sec. 4773, he cannot be required to make a further deposit.
(Syllabus by the Court.)
Error from District Court, Pittsburg County; Preslie B. Cole, Judge.
Action by John Woods against R.I. Bond and others. From a judgment of dismissal and denial of a motion to reinstate the cause, plaintiff brings error. Reversed.
Eubanks Elder and C. R. Hunt, for plaintiff in error.
On February 13, 1908, John Woods, plaintiff in error, a resident of the county and state, sued R.I. Bond and T. W. Hunter, defendants in error, in the district court of Pittsburg county, and before the summons issued made a cash deposit with the clerk of the court of $15, for costs. On April 12, 1909, he was ordered by the court to deposit additional costs or security therefor within 30 days. Failing to comply with the order, the court, on April 16, 1909, on defendant's motion, dismissed the cause at plaintiff's cost, whereupon he excepted, and his motion being overruled to reinstate the cause, he again excepted and brings the same here.
The court erred. Wilson's Stats. of Okla. 1903, § 4773, was adopted from Kansas. Comp. Laws 1879, c. 80, § 580a. Prior thereto, it was construed in Henry D. Carr, Ex'r, v. Sarah Osterhout, 32 Kan. 277, 4 P. 318. There the court in the syllabus said:
"Where the plaintiff in a suit in the district court, a resident of the county in which suit is brought, before the issue of a summons, deposits with the clerk of the court the sum of $15 as security for costs, pursuant to section 580a, c. 80, Compiled Laws of 1879, neither he nor his legal representatives or successors in interest can be required to make any further deposit, or give any further or other security for costs in that suit in that court."
The cause is reversed and remanded.
DUNN, HAYES, and KANE, JJ., concur; WILLIAMS, J., not participating.