Thereafter the defendant Delta Land & Water Company entered its appearance in the cause and gave notice that on February 11, 1918, it would petition, on the ground of diversity of citizenship, for removal of the cause to the United States District Court for the State of Nevada, for the reason that the plaintiff was a resident of the state of California and the defendant Delta Land & Water Company a resident of Nevada. In accordance with said petition, the cause was removed from the state court to the federal court, and thereafter, August 31, 1918, an order was made by the federal court remanding the cause back to the state court.
October 29, 1918, upon motion of the plaintiff, a hearing was had in the district court for Millard county upon the application of the defendant Delta Land & Water Company to strike certain allegations of the plaintiff’s complaint and also upon demurrers interposed thereto by other defendants, and said motion to strike and demurrers were then denied and the defendants given 30 days’ time in which to answer.
January 22, 1919, the defendants filed their answer. March 29, 1920, after service upon plaintiff’s counsel, a notice was filed in the cause by the defendant Delta Land & Water Company that pursuant to the provisions of Comp. Laws 1917, §§ 7051 and 7052, defendant Delta Land & Water Company required of the plaintiff security for the costs and charges which might arise and be awarded against the plaintiff.
May 22, 1920, the defendant Delta Land & Water Company filed in the court, pursuant to the provisions of said section 7052, a motion to dismiss the plaintiff’s action upon the ground of failure to furnish security for costs in compliance with the defendant’s request and the provisions of the aforesaid sections of the statute.
May 29, 1920, after notice, said motion for dismissal came
From the order or judgment of dismissal plaintiff appeals. The plaintiff very strenuously insists that the defendant’s demand for security for costs was not seasonably made; that, by reason of lapse of time and the proceedings theretofore had in the cause before a demand was made upon plaintiff, the right or privilege of the defendant to require security for costs under the statute was waived.
It is further contended by the plaintiff that, even if it be found that the defendant’s right to security had not been waived, the court’s dismissal of the action under all of the circumstances attending the case, and in view of the proceedings theretofore had, was premature and reversible error— that plaintiff should have been afforded-further time to comply with the defendant’s demand for security.
Section 7051 of our statute, under which the defendant made demand for security, in part provides:
“When the plaintiff in an action resides out of the state, or is a foreign corporation, security for the costs and charges which may be awarded against such plaintiff may be required by the defendant. When required, all proceedings in the action must be stayed until an undertaking executed by two or more persons is filed with the clerk, to the effect that they will pay such costs and charges as may be awarded against the plaintiff by judgment, or in the progress of the action, not exceeding the sum of $300.
Section 7052 provides:
“After the lapse of thirty days from the service of notice that security is required, * * * the court or judge may order the action to be dismissed.”
It is not contended otherwise than that the plaintiff was a nonresident when security for costs was required of her; nor is there -any contention made that a demand was not made upon notice in conformity with statute. The main contentions of the plaintiff are, as pointed out: First, that the defendant’s demand was not seasonably made, therefore its right or privilege under the statute was waited; secondly, that the dismissal of the action, after the proceedings there
As we view the sections of our statute under consideration, their provisions, when properly applied, are in effect most salutary. Doubtless they were designed to preserve the equality of litigants before the court in ill-founded actions brought by a nonresident plaintiff for relief or a recovery against a defendant by affording the latter an efficient means of collecting the costs that may be awarded him. It will be observed that the statute is silent as to what stage of the proceedings in the cause the defendant may exercise his right or privilege of requiring security for costs. The decisions of the American courts as to when the defendant should make application for security under statutes similar to our own are greatly at variance but all hold that the application should be seasonably made. So, too, the statutes of the several states are somewhat dissimilar in their provisions, and this accounts in a great measure for the decisions not being entirely harmonious. But aside from the dissimilarity of the statutes, the decisions have not been harmonious as to what stage of the proceedings in a cause the application may be sustained as being seasonably made. Some of the cases hold that applications for security should be made before answer, and others even before an appearance except for the special purpose of invoking the statute and requiring security. Others have held the application may be made after issues joined or at any time during the trial of the cause, provided the plaintiff is not prejudiced or the orderly procedure of the business of the court interfered with. On the other hand, the privilege may not at any stage of the proceedings of a cause be regarded as an absolute one, and, if delay in making application operates to the prejudice of the opposing party, it has been generally held the right to security has been lost. Such seems to have been the holding of this
Our attention is called by plaintiff’s counsel to the text in Corpus Juris, at pages 203, 204, 206, and 208, where the cases from the several jurisdictions bearing on the question of timely demand are collated and referred to in support of the text. As we glean from these eases, the controlling factor in determining the question, aside from express statutory provisions, has generally been whether or not the application by reason of delay has been prejudicial to the opposing party. Our statute grants to a defendant in an action brought against him by a nonresident plaintiff a substantial right which in our judgment may not lightly be interfered with; nor, so long as substantial justice may be meted out between
“The Revised Statutes establish the law oí this state respecting the subjects to which they relate, and their provisions and all proceedings under them are to be liberally construed with a view to effect the objects of the statutes and promote justice.” Section 5839, Comp. Laws Utah 1917.
As we read the record in this case, the defendant’s demand for security for costs when made was clearly within the right and privilege accorded it by the statute. Enforcement of the demand will leave neither party in a different position than before the demand was made, in so far as the real merits of the case and the issues involved between the parties are concerned.
It does not appear that either party has been insistent for a speedy trial of the issues, nor that any delay of a trial or interference with the orderly procedure of
However, we are of the opinion that the district court erred in summarily dismissing plaintiff’s action, under the circumstances and conditions as shown by the record, before affording her the opportunity of providing the defendant a security bond. The record shows that the plaintiff’s counsel, after having been served with notice that the
Of course, the matter of dismissing the action upon defendant’s application under the provisions of section 7052 rested in the sound discretion of the trial court, and we as an appellate court will not ordinarily interfere. However, under the circumstances and conditions of this
As we read the record, the plaintiff acted in perfect good faith in resisting defendant’s motion for dismissal. She was entitled under the circumstances to raise the question of defendant’s waiver and have it passed upon by the trial court before providing bond for security.
It is therefore ordered that the order or judgment of dismissal made and entered herein by the district court be vacated and set aside, and that the cause be remanded to the district court, with directions that the plaintiff be ordered and required to furnish bond for security of costs and charges