#### Alex ROMERO et al., Plaintiffs-Relators, v. Fred ROMERO, Individually and as Police Juror, Ward 5, Iberia Parish, Defendant-Respondent.

No. 3033.

Court of Appeal of Louisiana, Third Circuit.

March 12, 1970.

Dissenting Opinion March 17, 1970.

*573J. Minos Simon and John Rixie Mouton, Lafayette, for plaintiffs-relators.

Armentor, Wattigny & Decuir, by Minos Armentor, New Iberia, for defendant-respondent.

MILLER, Judge.

Plaintiffs-relators were granted supervisory writs so that we could review the trial court’s ruling ordering plaintiffs to file with the Clerk of Court a bond in the amount of Five Hundred ($500.00) Dollars for security for costs to be paid by defendant prior to rendition of judgment, pursuant to LSA-R.S. 13:4522.

Plaintiffs (seven taxpayers allegedly adversely affected) sought an injunction to prohibit the defendant Police Juror from allegedly squandering public funds. After filing exceptions of nonjoinder of indispensible party and of no right or cause of action, defendant applied for and obtained a rule nisi (following LSA-C.C.P. Form 505) directed to plaintiffs ordering them to show cause why they should not be required to furnish security for all costs to be paid by defendant prior to rendition of judgment.

The defendant’s motion for costs, filed through his counsel suggested to the court that defendant intends to take the testimony of the seven plaintiffs, thirteen Iberia Parish Police Jurors, eighteen Iberia Parish Police Jury employees, and the Secretary of the Iberia Parish Police Jury by deposition on oral examination. The motion suggests that the taxable costs of taking the depositions will amount to at least $60 each, making up a total of $2,340. Additionally, the motion suggests that defendant will order a transcript of the testimony taken at trial, and suggests that this will cost more than $2,940. Thus, defendant requested a bond of $5,280 for the depositions and transcript of trial testimony.

The rule was fixed for hearing on November 13, 1969. At that hearing no witnesses were called and no evidentiary offerings made. Plaintiffs urged the immediate recall of the rule nisi inasmuch as no evidence in support of the application was presented. After taking the matter under advisement to consider briefs, the trial court ordered plaintiffs to furnish to the Clerk of Court a Five Hundred Dollar bond as security for costs of this action, within fifteen days. Plaintiffs timely filed for Writs of Certiorari, Prohibition and Mandamus, which application was granted on January 29, 1970.

The essential question of law presented is: Has defendant established that he is entitled to require plaintiff to post a cost bond in favor of the Clerk of Court, under LSA-R.S. 13:4522?

The statute alone does not clearly state the rule as it has been uniformly interpreted in the jurisprudence.

> “§ 4522. Defendant may demand security for costs

> “The defendant before pleading in all cases may by motion demand and require the plaintiff or intervenor to give security for the cost in such case, and on failure to do so within the time fixed by the court such suit or intervention, as the case may be, shall be dismissed without prejudice. This section shall not apply to the Parish of Orleans and to cases brought in forma pauperis, nor to the state or any political subdivision thereof.”

*574It was decided in Whitson v. American Ice Co., 164 La. 283, 113 So. 849 (1927) that this provision (then Act 111 of 1926) had reference only to such costs as a defendant might have an interest in securing; that is, such costs as a defendant might be obliged to pay out prior to final judgment and for which he might be allowed reimbursement by the final judgment to be rendered in the case. See also Jones v. Williams, 191 La. 129, 184 So. 565 (1938); Norton v. Perez, 180 So. 878 (La.App.Orls.1933).

These costs are not those included under LSA-R.S.. 13:841 — 843 (formerly Act 203 of 1898) which allow the clerk of court to require plaintiff to furnish security for costs at the time of filing suit, and to demand additional security at any time thereafter. In the Whitson case, the Supreme Court put it this way:

> “We maintain therefore that the Act 111 of 1926 does not permit the defendant in a lawsuit to harass the plaintiff by meddling in a matter that does not particularly concern the defendant. The clerk of court and the sheriff may be depended upon to perform their duty under section 5 of the Act 203 of 1898— to look after securing the payment of the costs of court — and particularly those which the defendant is not responsible for until and unless he is condemned to pay the costs by the final judgment.” 164 La. 283, at 287, 288, 113 So. 849, at 850.

Another key requirement that does not appear in the statute, but is found in the cited jurisprudence is that defendant must show the “necessity for a bond for costs.” Whitson v. American Ice Co., 164 La. 283, 288 and 289, 113 So. 849, 851 (1927); Jones v. Williams, 191 La. 129, 184 So. 565 at 567 (1938); Norton v. Perez, 180 So. 878 at 879 (La.App.Orls.1938).

The trial judge has discretion in setting the amount of the bond, but this discretion must be exercised “with due regard for the *actual necessity for a bond*and for the interest or motive of the party demanding it.” Whitson v. American Ice Co., 164 La. 283, at 289, 113 So. 849 at 851 (1927).

What costs are included in R.S. 13:4522? Only those necessary expenses which defendant may have to pay or be responsible for in advance of a judgment determining who shall pay the costs, and which plaintiff may ultimately be condemned to pay. Examples cited in Whit-son were “fees of expert witnesses, auditors, surveyors or other scientists, whose services or opinions may be *needed*in defense of the suit * * * which the plaintiff may finally be condemned to pay. * * * A defendant may also find it *necessary*to take the depositions of witnesses under commission, and may have to pay in advance or be responsible for the notary’s fees or other expenses which may be taxed as costs of court and which the plaintiff may ultimately be condemned to pay.” 164 La. 283, 288, 113 So. 849, 850. (Emphasis added.)

The record in this case, a copy of which was sent up in response to the writ of certiorari, shows that defendant did not allege or prove a need for incurring expenses which may ultimately be taxed to plaintiffs.

The $500 bond set by the trial court may have been to cover defendant’s costs related to taking discovery depositions from the seven plaintiffs. While this could be necessary to the preparation of a proper defense,1 there is no such allegation in the motion for costs and defendant did not produce proof of need at the hearing.

*575The order (granted under LSA-R.S. 13 ¡4522) to furnish security for $500 court costs is annulled reserving to defendant the right, on proper showing, to demand, now or whenever the *necessity*may arise, security for any costs which defendant may need to incur (or be responsible for) in advance of a final judgment condemning either party to pay such costs. Respondent Fred Romero is to pay the costs of these supervisory proceedings.

Cost bond annulled: case remanded.

1

. We pretermit this issue. Evidence might disclose that defendant could develop necessary information by interrogatories.

CULPEPPER, Judge

(dissenting).

There are two questions of law in this case: (1) The only one argued by counsel in their briefs is stated in relators’ brief as follows: “The essential question of law presented is whether or not a litigant can be compelled to advance funds to secure an adversary, where there is presented no evidence whatsoever to support the application of the provisions of LSA-R.S. 13 :- 4522.” (2) The second issue is whether the particular kinds of costs for which defendant requests security are covered by the statute in question.

The majority opinion does not make an express ruling on the first issue. It says the defendant “must show the necessity for a bond for costs” and that in this case he “did not allege or *prove*a need for incurring expenses which may ultimately be taxed to the plaintiffs.” (Emphasis supplied) By this language I cannot determine whether the majority is holding that the defendant must introduce evidence at the hearing in order to show the necessity for security. Since this is the only issue raised by counsel and is a crucial question in the case, I think we should answer it.

The relator contends that Whitson v. American Ice Company, 146 La. 283, 113 So. 849 (1927) holds the defendant must in every case introduce evidence to support his motion for security for costs under LSA-R.S. 13:4522. I do not agree the Whitson case goes this far. I think the nature of the “showing” required of the defendant is within the discretion of the trial judge.

In Whitson defendant filed a motion for an ex parte order requesting security for costs in the sum of $1,500. The motion gave no reasons whatever for the request and no hearing was held. The judge fixed the amount of the bond at $1,000. The court noted that Act 111 of 1926, the source statute of LSA-R.S. 13:4522, does not expressly state what showing is required to support the necessity for security or how the amount is fixed. The opinion states:

> “The determining of the amount of security to be given in any judicial proceeding, particularly the amount of security for the payment of court costs, is essentially a judicial function; and when a statute authorizes the judge to require a litigant to give security for the court costs, and does not say how the amount of the security shall be fixed or determined, the judge, having authority to require the security has the authority, necessarily, to fix the amount according to his discretion and the showing made by the party demanding the security.”

The rationale of Whitson is further stated in the decision as follows:

> “It is not the duty of the plaintiff in such case to show that, as far as the defendant is concerned, there is no necessity for a bond for costs, or to show how small a bond will suffice. The burden is on the party demanding the security to show how large a bond is necessary to protect him. 15 C.J. 207, par. *576SOI. Some discretion in that respect is left with the judge, to be exercised, however, with due regard for the actual necessity for a bond and for the interest or motive of the party demanding it.”

In Whitson no reasons were given in the motion, no hearing was held and no “showing” whatever was made to support the request for security. The Supreme Court required a “hearing” and a “showing”. But it did not say the “showing” must in every case be by evidence introduced at the hearing.

I find no Louisiana case defining the word “showing”. However, cases from other jurisdictions indicate it has various meanings, depending upon the context. In Spalding v. Spalding, N.Y., 3 How.Prac.297, the word “showing” in a statute was construed to require proof by evidence. In First National Bank of Cheyenne v. Swan, 3 Wyo. 356, 23 P. 743, the term “showing” in a statute on attachments was held not to mean merely “alleging” or “stating” but required that plaintiff show good reason for his belief by making it apparent or by supporting affidavits. In Carr v. Industrial Commission, 2 Ariz.App. 307, 408 P.2d 411, the court held the “showing” required under a workmen’s compensation case could not be made ex parte but required some notice to all parties concerned and a hearing before the Commission.

There are many Louisiana statutes which require a “showing” in a context which obviously indicates it does not mean that evidence must be introduced. For instance, see LSA-C.C.P. Article 3604 which states in part: “A restraining order, *for good cause shozvn*and at any time before its expiration, may be extended by the court for one or more periods not exceeding ten days each.” (Emphasis supplied) Under this statute, good cause may be “shown” by the reasons set forth in the motion.

I find no authority to support the contention that the word “showing” must be construed in every case to mean that evidence must be introduced.

I think a “showing” in the present case could be made in several ways. For instance, it could be made by facts alleged in the motion, by supporting affidavits, or by arguments of counsel at the hearing. The nature of the showing required should be left largely to the discretion of the trial judge. We should not limit this discretion by requiring that in every instance evidence must be introduced.

Applicable here is the following from our Code of Civil Procedure:

> “Art. 963. Ex parte and contradictory motions; rule to show cause

> “If the order applied for by written motion is one to which mover is clearly entitled without supporting proof, the court may grant the order ex parte and without hearing the adverse party.

> “If the order applied for by written motion is one to which the mover is not clearly entitled, or which requires supporting proof, the motion shall be served on and tried contradictorily with the adverse party.

> “The rule to show cause is a contradictory motion.”

In my view, Article 963 gives the trial judge discretion to determine whether supporting proof is required for motions which are heard contradictorily. There are motions, such as the one at issue in the present case, where, although the mover is not clearly entitled to the relief sought and a hearing by rule to show cause is necessary, the matter can best be determined from the showing made in the pleadings and the arguments of counsel.

For instance, suppose evidence is required in the present case. What evidence would be introduced? The only person who really knows the necessity and amount *577of security for costs prior to judgment is counsel for the defendant. Are we going to say that he must take the witness stand and testify under oath as to how he plans to present his defense, what depositions he plans to take, what expert testimony must be secured and how much all of this is going to cost? He can do this better by alleging these facts in his motion and arguing the matter at the hearing.

Suppose the defendant himself were placed on the stand and asked why he needs security for costs in advance of judgment and the amount required. His answer would probably be “I don’t know. You’ll have to ask my lawyer.”

Does the holding of the majority mean that at the hearing we are going to have to take the testimony of the witnesses whose depositions are sought in order to determine whether the depositions are necessary to defendant. Surely, this can be set forth in the motion and stated in argument.

The relator also relies on Norton v. Perez, 180 So. 878 (Orl.App.1933) which construes Whitson as requiring that in every case evidence must be introduced at a contradictory hearing on a motion for security for costs. My answer to Norton is that we are not bound by it and I think it erroneously construes Whitson.

The second issue in the present case is whether the particular kinds of costs for which defendant requests security are covered by LSA-R.S. 13:4522. In his motion the defendant requests bond for three kinds of costs: (1) 39 depositions at $60 each, a total of $2340; (2) subpoenaing 10 additional witnesses; (3) transcribing the testimony of the 49 witnesses, the costs of which is estimated at $2940. The total bond requested is $5,280.

For the reasons stated in the majority opinion, I agree the defendant is not entitled to bond for the costs of subpoenaing the 10 witnesses or transcribing the testimony. The defendant will not have to pay for, nor obligate himself to pay, these costs in advance of judgment. The Whitson case is clear authority that these types of costs are not covered by the statute.

However, depositions are covered by the statute. The Whitson case expressly lists depositions as an example of the types of costs for which security may be required. The majority opinion holds that defendant did not make a proper showing of the necessity for any of these depositions in order to prepare his defense. I disagree.

In his motion for security for costs the defendant alleges: “In the defense of this suit and in advance of the rendition of judgment, mover will be compelled to pay as costs of court at least $5,280 as set forth below.” With reference to the depositions the motion alleges: “For use as evidence at the trial, mover intends to take the testimony of (then follows a listing of the 39 witnesses) * * * The taxable costs of taking said depositions will amount to at least $60 per person for 39 witnesses or $2,340.”

No evidence was introduced at the contradictory hearing on the motion but counsel for plaintiffs and defendants were present and gave arguments to support their respective positions. This is apparent from the written ruling of the trial judge as follows:

> “This Court is also aware however that not all depositions end up as a court cost. A deposition can only be charged as a court cost if it is actually introduced into evidence at the trial of the case. It is impossible to state at this time whether any or all of the prospective depositions may be used.

> “Nevertheless from experience and taking the statement of counsel as a guide, it would appear probable that some of the depositions may be used.

> *578“Accordingly, it is the opinion of this Court that the defendant would be adequately protected, at least at this time, if the plaintiffs furnished a bond for costs in the amount of $500.00.”

I think it is clear that the necessity for depositions was sufficiently alleged in defendants’ motion. And, although we do not have in the record a transcription of the arguments made by counsel at the hearing, we can rely on the written opinion of the trial judge that sufficient reasons were given by respondents’ counsel to show the necessity for at least some of the depositions. Thus the requirements of the Whitson case were met. A contradictory hearing was held and a showing of the necessity and cost of the depositions was made in the allegations of the motion and the arguments of counsel.

Summarizing, I think the trial judge has correctly construed the statute and the cases. The application of these rules in the present case was within his discretion. His ruling should be affirmed.