68 P. 1127 | Kan. | 1902
Warner, a non-resident of the state, brought his action against Farmer in justice court upon a promissory note. The original note was filed with the justice as plaintiff’s bill of particulars. Plaintiff gave no cost bond and made no deposit in lieu thereof. Summons was issued and served, default made, judgment entered. This suit was brought by Farmer against the judgment creditor, Warner, his attorney, the justice, constable, and a garnishee, to enjoin enforcement of the judgment, and is based upon the sole ground that the justice was without jurisdiction 'to render the judgment because he required no security for costs, or deposit in lieu thereof, to be made before issuance of summons. A demurrer to the petition was sustained. Plaintiff below brings error.
The'contention made by counsel for plaintiff in'error is, that the statutory requirement as to the security for costs is mandatory and jurisdictional, and, not having
We do not agree with this contention. Statutory provisions requiring security for costs are for the protection of the officers of the court and witnesses. While compliance with the mandatory provisions of such statutes will be.enforced, if called to the attention of the court by motion or otherwise, the failure to enforce such provisions by the court does not deprive it of jurisdiction or render its judgments a nullity.
The judgment is affirmed.
