#### Van Hooser, et al. v. Atkinson, et al.

(Decided January 19, 1916.)

Appeal from Christian Circuit Court.

■Costs — Failure to Execute Bond for Costs — Section 616 Civil Code. — A failure to execute a 'bond for costs by a non-resident .plaintiff, after reasonable opportunity allowed by the court, is ground for the dismissal of his action without prejudice under the provisions of section 617 of the Civil Code.

JOE MeCARROLL and HENDRICK & NICHOLS for appellants.

S. P. WHITE, C. H. BUSH, BERNARD ATKINSON and IRA D. SMITH for appellees.

OpinióN op the Court by

Judge TurNer

Affirming.

On the 18th day of May, 1912, appellee, Bernard Atkinson, filed a suit asking for damages against J. F. VanHooser in the Christian Circuit Court, alleging grounds of attachment, and a general order of attachment was issued and served upon L. V. Wells and Carrie Wells, garnishee defendants. The said garnishee defendants answered admitting an indebtedness to Van-Hooser of about $675, the balance on a purchase money note of $1,200.00 owing by them to said J. F. VanHooser and Emily VanHooser to whom the purchase money note was jointly, payable. J. F. VanHooser was only constructively summoned and did not appear in the action except for the purpose of filing a plea to the jurisdiction, which was overruled.

*2In February, 1914, Emily YanHooser in ber own name and as guardian for ber infant daughter filed an action in tbe circuit court against L. Y. Wells and Carrie Wells seeking a foreclosure on tbe purchase money note of $1,200.00, and alleging that tbe. interest of J. F. YanHooser in the note bad been assigned by him to Emily YanHooser and ber said infant daughter. This $1,200.00 .note was tbe sáme ;debt which bad been previously garnisheed by Bernard Atkinson. In tbe last named action Atkinson filed bis petition to be made a party, and after having been so made, entered a motion to have tbe two suits consolidated, which motion was sustained.

Clearly tbe action of tbe court in consolidating tbe two suits was proper as Atkinson was claiming a lien by reason of bis attachment on tbe interest of J.‘ F. Yan-Hooser in tbe proceeds of tbe note, while Mrs. Yan-Plooser and ber daughter were claiming in tbeir action tbe whole proceeds'of tbe same note.

Tbe petition of Mrs. YanHooser and ber daughter shows that they were non-residents of tbe State of Kentucky, and after tbe two suits were consolidated and Atkinson made a party defendant in ber action, be entered a motion that the plaintiffs therein be required to execute a bond for costs. This motion was made at tbe February term, 1914, but was not acted upon until tbe following June term, 1914, at which time it was sustained, and the plaintiffs in tbe foreclosure suit given six days in which to execute such bond. Some days after tbe expiration of this time, tbe bond not having been executed, tbe court dismissed the petition of Mrs. YanHooser, and in the order dismissing tbe same, in effect, set aside tbe order consolidating tbe two actions, and directed that tbe action of Atkinson against J. F. YanHooser proceed under its original style.

From that action of tbe court Mrs. VanHooser and ber daughter have appealed.

After tbe dismissal of Mrs. VanHooser’s action tbe court proceeded to enter a judgment in tbe suit of Atkinson v. J. F. YanHooser, and in tbe briefs many questions growing out of that action are discussed; but in our view of this case there is no question presented'except tbe propriety of tbe action of tbe court in dismissing Mrs. VanHooser’s action because of ber failure to execute tbe bond for costs.

*3Section 616 of the Civil Code provides that certain persons, embracing non-residents of the State, before commencing an action, shall file in the clerk’s office a bond to be approved by the clerk for the payment of all the costs which may accrue in the action, either to the defendant or to the officers of the court; and section 617, provides:

> “An action in which a bond for costs is not given, as is required by section 616, shall be dismissed on the motion of the defendant at any time before judgment, unless in a reasonable time, to be allowed by the court, after the motion is made therefor, such bond be filed, securing all past and future costs; and the action shall not be dismissed or abated, if a bond for costs be given in such time as the court may allow.”

Atkinson was made a defendant to Mrs. YanHooser’s suit by the lower court, and the pleadings in the. two consolidated actions show that the only real question at issue is between them, Atkinson claiming a lien on one-half of the purchase money note which he asserted was payable to J. F. YanHooser and she claiming that the whole of the proceeds of the purchase money note belonged to her and her infant daughter by reason of the assignment to them by J. F. YanHooser. Under this state of the record Atkinson was placed in a position where he might properly demand, before the litigation proceeded further, that she should execute a bond for costs, and the court having given her ample opportunity to do so, and she having failed, there was no alternative except to dismiss her action.

There has been, however, no adjudication on the merits as between the parties, and the dismissal of the action was equivalent only to a dismissal without prejudice ; so that the question on the merits may be hereafter litigated.

Judgment affirmed.