#### Carter Publishing Co. v. Dennett *et al.*

1. Under Comp. Laws, § 6141, providing that a justice of the peace shall require security for costs from nonresident plaintiffs before issuing a summons, the filing of security is not a condition precedent to the jurisdiction of the justice to issue summons and proceed to final judgment on default.

2. The receipt of rent by the owner of premises after rendition of a judgment in his favor in an action for possession, which rent was due prior to the suit, is not a waiver or abandonment of the judgment.

3. Where the answer admitted that plaintiffs had been tenants of defendants, but alleged that they were then wrongfully in possession, and, on the trial, defendant’s counsel stated, “it is admitted in the pleadings” that plaintiffs “are tenants of the defendants,” it is presumed that it was not intended thereby to make any further admission than was madé in the pleadings.

(Opinion filed April 4, 1899.)

Appeal from circuit court, Hughes county. Hon. Loring E. Gaffy, Judge.

*487Action for an injunction. From a judgment for defendants, plaintiff appeals.

Affirmed.

The facts are stated in the opinion.

*John A. Holmes,*for appellant.

‘ The judgment can and should be enjoined. Pollock v. Gilbert, 16 Ga. 398, 60 Am. Dec. 732; Hilbard v. Eastman, 47 N. H. 507, 93 Am. Dec. 467. A justice of the peace has no power to issue a summons in a case where the plaintiff is a nonresident, until security for costs is furnished. § 6141, Comp. Laws. Leonosio v. Bartilino. 7 S. D. 93; Penrose v. McKinzie, 116 Ind. 35; Orowicki v. Ferrich, 106 Mich. 41.

*Dillon & Sutherland,*for respondents.

The objection that security for costs was not given comes too late after judgment. The provision for security is for the benefit of the defendant; it is not jurisdictional, and may be waived. Parks v. Goodwin &Hand. 1 Doug. (Mich.) 56; Bank v. Jessup, 19 Wend. 10; Carpenter v. Aldrich, 3 Mete. 58; Trustees v. Walters, 12 111. 154; Alford v. Jacobson, 46 Wis. 574; Walker v. Russel, 35 N. W. 443.

Corson, P. J,

This is an action brought by the plaintiff to restrain the defendant Strayer, as sheriff of Hughes county, from in any manner interfering with the possession of the plaintiff of the premises occupied by it by virtue of an execution issued out of the justice’s court on a judgment by default rendered in February, 1897, in favor of Lizzie Dennett' and Fred Dennett, as plaintiffs, against the Carter Publishing Company, in an action of forcible entry and detainer. This action was instituted by the present plaintiff upon the theory — First, that the said judgment was void for the reason that the plain*488tiffs therein were nonresidents of the state, and filed no security for costs; second, that the plaintiffs in that action had, in in effect abandoned or waived the said judgment by treating the said defendant therein as a tenant, and accepting rent from it subsequent to the rendition of said judgment. The case was tried by the cóurt without a jury, and it found the facts, and entered judgment in favor of the defendants herein, from which the plaintiff appealed.

The appellant contends that the judgment was void for the reasons before stated, and bases its contention upon Section 6141, Comp. Laws, which reads as follows: “The justice shall in all cases where plaintiff is a nonresident of the territory, or foreign corporation, before issuing a summons, require of the plaintiff sufficient surety for costs. * * * In all other cases the justice may, in his discretion, require surety for costs.” Appellant insists that the provisions of this section are mandatory, and that a compliance therewith is necessary to give the justice’s court jurisdiction; but, in our view, this contention is not tenable. The statute is mandatory, in that it is the duty of the justice, upon the application of the defendant, and upon satisfactory evidence that the plaintiff is a nonresident of the state, to require the plaintiff to file such security for costs, and upon his failure to comply with an order so made within a reasonable time, the action may be dismissed. But filing security for costs is not a condition precedent to the exercise of jurisdiction by the justice. His jurisdiction is defined and limited by the statute, which does not include, as a condition for the exercise of such jurisdiction, security for costs, and the statute does not make the giving of security for costs a condition on compliance with which the summons shall issue. Nor *489does it provide that the summons shall be void, or be quashed or set aside, if such security shall not be given. The court, having general jurisdiction of the subject-matter and of the party, may proceed to final judgment, unless the defendant move to set aside the summons for this defect. Such motion, when made, should prevail; unless the plaintiff in the action furnish the required security. But when the defend ant fails to appear in the action, or move the court that security be given, the objection is deemed to be waived and the defect cured. Michigan and Wisconsin have provisions similar to those found in Section 6141, Comp. Laws, and it has been held in those states that the failure to file security in the first instance does not affect the jurisdiction of the court. Parks v. Goodwin, 1 Doug. 56; Conrad v. Cole, 15 Wis. 545; Taylor v. Wilkinson, 22 Wis. 40; Alford v. Jacobson, 46 Wis. 574, 1 N. W. 233. In the latter case, the supreme court of Wisconsin, after commenting upon the two former decisions of that court, uses the following language: “Were the question now first presented, we think we would have no difficulty in holding, on principle, that the failure of a nonresident plaintiff to give security for costs, in a case pending before a justice of the peace, does not deprive the justice of jurisdiction to render judgment against the defendant.”

The court below, among others, makes the following finding: “(5) That said judgment before D. W. March, justice of the peace, was at the time of the issuing of said execution, and at the time of the granting of the temporary writ of injunction, and at this time is, in full force and effect; that same had not been satisfied or canceled in any manner and that said execution or writ of restitution was duly and properly issued, *490and was in full force and effect, and that said sheriff had full right and authority to proceed under the same.” Appellant excepted to this finding upon the ground that the evidence established the fact that the Carter Publishing Company was treated as a tenant, and rent received from it, subsequent to the rendition of said judgment, and that the judgment was thereby waived or abandoned. It appears from the evidence that in March, 1897, the agent of Lizzie Dennett and Fred Dennett received from the plaintiff $200, and in June following the sum of $88; but it is also disclosed by the evidence that these sums were received on account of rent due prior to February of that year. The evidence also shows that between February and August 5th, when the present action was instituted, A. L. Carter, the managing agent of the Carter Publishing Company, and Mr. Dillon, agent and attorney of the Dennetts, had numerous conversations in regard to a new lease of the premises, but they failed to agree upon any terms, and no lease was in fact made. The evidence in-regard to these conversations was somewhat conflicting, and this court cannot say there was a preponderance of the evidence against the finding of the court.

The counsel for appellant contends that it was admitted on the trial that this plaintiff was tenant, at the time of the trial, of the Dennetts. We think counsel claims too much for the admission made. It appears from the evidence that the Carter Publishing Company had been in the possession of the premises since 1890, and held under the Dennetts under a lease made in 1894. The defendants in their answer admit that said company had been in possession of the premises since 1894, but allege that since February 12, 1897, it had wrongfully and unlawfully occupied said premises. On the trial, while Mr. A. *491L. Garter was on the stand as a witness, he was asked: “Q. Did the plaintiffs ever at any time occupy these premises as a tenant? A. They did. Q. And when did the tenancy begin? Mr. Dillon: We object to the question, for the reason that it is incompetent. It is admitted in the pleadings in this case that they are tenants of the defendants, Lizzie Dennett and Fred Dennett.” It must be presumed, we think, that the admission simply followed the admission in the pleadings, and that it was not intended by counsel to make any further admission than that stated in the pleadings. The judgment of the circuit court is affirmed.