Coffey v. Collier

12 Ind. 565

• Court: Indiana Supreme Court
• Decided: June 25, 1859
• Status: Published

Opinion

Per Curiam.

Coffey sued Richard and Joel Collier before a justice of the peace, upon a promissory note for the payment of 22 dollars. The justice gave judgment for the plaintiff, and the defendants appealed. In the Common Pleas, they moved to dismiss the cause, on the ground that the plaintiff had not, when he commenced his suit before the justice (he being a non-resident of the county in which it was commenced), given security for costs. Pending this motion, the plaintiff offered to give such security; but his offer was refused. The defendants’ motion was sustained, and the cause dismissed, &c.

The code says, justices shall require security for costs from plaintiffs living out of the county. 2 F. S. p. 460, § 55. But here, the record, though it shows that the defendants appeared before the justice, and contested the plaintiff’s suit, fails tó show that they even suggested his non-residency. And the defendants having appealed, the cause must be considered in the Common Pleas de novo. And the result is, that security for costs could not be required in that Court, unless the plaintiff was a non-resident of the state. Id. pp. 127, 463, §§ 402, 67.

J. W.. Gordon and O. J. Glisner, for the appellant. A. A. Barrickmcm, for the appellees.

The judgment is reversed with costs. Cause remanded, &c.