33 N.W.2d 260 | Wis. | 1948
"Every person commencing an action against any officer and his sureties upon his official bond, except the obligee named therein, shall give security for costs by an undertaking as prescribed in section 271.28 (3) or 307.09, respectively, and a copy thereof shall be served upon the defendantsat the time of the service of the summons."
The language in these provisions is clear, unequivocal, and definite. Thereby the plaintiff in such an action is absolutely required to "give security for costs by an undertaking as prescribed in section 271.28 (3) or 307.09, respectively," and to serve a copy thereof "upon the defendants at the time of the service of the summons." That the word "shall," where it appears in the above-italicized provisions in sec.
In this case plaintiff not only failed to serve upon any of the defendants at the time of the service of the summons a copy of the undertaking required to be given as security for costs, but he also failed to give or file any security for costs whatever, as is absolutely required by sec.
Plaintiff's contention that the order of dismissal of the action was improperly made, because less than eight days' notice of the hearing of the application therefor was given to plaintiff, cannot be sustained. In making that contention he relies on sec. 269.31, Stats., which requires in relation to motions generally eight days' notice of the hearing thereof. In this case the Surety Corporation's notice of its motion for dismissal was served on plaintiff only five days prior to the hearing pursuant thereto. Plaintiff did not appear at the hearing and did not then object thereto. As this court has held, no notice of any kind is required to be given to a plaintiff of an application for an order for the dismissal of the action on the ground that he has failed to furnish security for costs required of him. Feltonv. Hopkins, supra (p. 144); Joint School Dist. No. 7 v. Kemen,supra (p. 181). As by an express provision in sec. 269.31, Stats., the eight days' notice of motion is required only. "when a notice of motion is necessary," and as this court has been holding that no notice of motion is necessary for the dismissal of an action on the ground that required security for *166 costs has not been furnished, sec. 269.31, Stats., has no application to such a motion, and the order in question herein for the dismissal of the action.
Moreover, even if that statute were applicable, the court's action in making the order without sufficient notice would be, at most, a mere irregularity, and the order would not be void and therefore vacated by the court unless it is shown that the plaintiff was prejudiced by reason of the insufficiency of the notice. Federal Land Bank v. Olson,
By the Court. — Order affirmed.
MARTIN, J., took no part.