Neidhart v. Collins

271 P. 321, 46 Idaho 759, 1928 Ida. LEXIS 167

• Court: Idaho Supreme Court
• Decided: October 19, 1928
• Docket: No. 5014.
• Status: Published

Opinion

GIVENS, J.

An action was brought by appellant against respondent in the justice court and was appealed by appellant to the district court wherein the then defendant (respondent here) moved, under C. S., secs. 7221, 7-222, that the plaintiff therein (appellant here) be required to furnish a bond to secure costs, and in support of such motion filed an affidavit of his attorney on information and belief that the plaintiff was a nonresident of the state of Idaho. Plaintiff in opposition thereto filed an affidavit of his attorney, which was, in effect, likewise on information and belief, because it stated in substance that the plaintiff was temporarily absent from the state but intended to return and was a local resident. No security being filed, the district court, in compliance with the statute, dismissed the action.

The two affidavits constitute the record in the matter and from these it cannot be said that the trial judge abused his discretion or erred in finding in favor of the defendant.

The judgment is affirmed. Costs awarded to respondent.

Wm. E. Lee, C. J., and Budge and Taylor, JJ., concur.