| Colo. | Apr 15, 1877
The defendant in error moves the court to dismiss the writ on the ground that no bond for costs has been filed as required by section 1, chapter XIX of the Revised Statutes.
The motion is supported by an affidavit setting up that the plaintiff in error was a non-resident when the writ was sued out. This is not sought to be controverted by counter affidavits.
The statute declares in mandatory terms that if any action shall be commenced without filing a cost bond, the court on motion shall dismiss the same. The language is unequivocal, and leaves nothing to the discretion of the court. Western Union Telegraph Co. v. Graham, 1 Col. 183; Talpey v. Doane et al., 2 id. 299; White v. Wilson, 5 Gil. 20. But it is contended, that as a bond for a supersedeas was filed simultaneously with the suing out of the writ, no cost bond was necessary ; that the supersedeas bond served the same purpose as the cost bond. Is this true?
A bond for a 'supersedeas is conditioned “for the payment of the judgment, costs, interests and damages, in case judgment shall be affirmed, and also for the due prosecution of the writ of error.” The cost bond obligates the sureties “ to pay, or cause to be paid, all costs which may
The provisions of the two bonds are essentially different. The supersedeas bond is limited in its operation. Unless the judgment of the lower court be affirmed, there can be no breach of the condition, and consequently no recovery of costs. It is intended for the protection of the defendant in error. In any event, whether the judgment of the lower court be affirmed or reversed, each party is liable to the officers of this court for his own costs. The payment of all costs occasioned by the plaintiff in error without regard to the ultimate judgment of the court is secured by the cost bond. The officers of the court are protected. If there were no cost bond ; if the officers of the court had to rely upon the supersedeas bond for the costs made by the plaintiff in error, then in the absence of a judgment against him for costs, his security would not be liable for any.
The purpose of the statute requiring a cost bond is evident. The filing of a bond.for a supersedeas does not, as we have shown, accomplish that purpose, nor in any sense waive the necessity of filing a cost bond. We are all of opinion that the motion to dismiss must prevail. The writ will be dismissed.
Dismissed.