In all cases the plaintiff, on motion of any person interested in the suit or costs, may be ruled to give security for costs, and in case he shall fail so to do on or before the first day of the next term after such rule, the case shall abate.
Provided, however, that should said parties at any time during said term file with the clerk of the district court a good and sufficient bond, such cause may upon application of said party be reinstated on the docket of the court, subject to trial during the term as other cases.
History: Laws 1850-1851, p. 146; C.L. 1865, ch. 27, § 47; C.L. 1884, § 1843; C.L. 1897, § 2892; Laws 1909, ch. 77, § 1; Code 1915, § 4291; C.S. 1929, § 105-1310; 1941 Comp., § 29-113; 1953 Comp., § 25-1-13.
ANNOTATIONSCross references. — For labor commissioner not required to give security for costs, see 50-4-12 NMSA 1978.
For appeals bonds, see Rule 1-062 NMRA.
Discretion of court. — It is discretionary with the court as to whether plaintiff shall be ruled to give a cost bond. City of Roswell v. Bateman, 1915-NMSC-011, 20 N.M. 77, 146 P. 950.
Granting or denying motion to give security bond for costs is an exercise of judicial discretion. State ex rel. Lebeck v. Chavez, 1941-NMSC-016, 45 N.M. 161, 113 P.2d 179.
Meaning of "bond" for labor commissioner (now director of labor and industrial division). — Under Subsection A of wage claim statute, 50-4-12 NMSA 1978, the word "bond" relates only to the costs of a proceeding and relieves labor commissioner (now director of labor and industrial division) from giving a cost bond under the provisions of this section, and the word "bond" in Subsection B refers only to guaranteeing the fees of the sheriff or other officer. Cal-M, Inc. v. McManus, 1963-NMSC-184, 73 N.M. 91, 385 P.2d 954.
Cost bond on appeal is not essential to jurisdiction of the supreme court, and its filing may be waived. Abeytia v. Spiegelberg, 1915-NMSC-072, 20 N.M. 614, 151 P. 696.
Default judgment without acting on motion for cost bond. — After answer to a verified complaint on a promissory note has been stricken out as "sham and unverified," and the defendant has elected to stand on his answer, he may have default judgment against him without first acting specifically on his motion for costs bond filed with his answer. Pilant v. S. Hirsch & Co., 1907-NMSC-003, 14 N.M. 11, 88 P. 1129.
Attachment proceeding bond not waived for labor commissioner (now director of labor and industrial division). — Sections 50-4-11 and 50-4-12 NMSA 1978 relating to wage-claim actions by the labor commissioner (now director of labor and industrial division) do not waive the requirement for the furnishing of a bond in an attachment proceeding under 42-9-4 and 42-9-7 NMSA 1978. Cal-M, Inc. v. McManus, 1963-NMSC-184, 73 N.M. 91, 385 P.2d 954.
Affidavit for forma pauperis sufficient answer to rule for security. — An affidavit for the right to sue in forma pauperis is sufficient answer to the rule for security for costs. Bearup v. Coffey, 1898-NMSC-029, 9 N.M. 500, 55 P. 289.
Plaintiff who dismisses his suit must pay costs and reimburse the defendant. Delahoyde v. Lovelace, 1935-NMSC-063, 39 N.M. 446, 49 P.2d 253.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 20 Am. Jur. 2d Costs § 78 et seq.
Leave of court as prerequisite to action on bond for costs, 2 A.L.R. 575.
Waiver of statute or court rule requiring nonresident plaintiff to give security for costs, 8 A.L.R. 1510.
Assignment of judgment as carrying rights of assignor as to cost bond, 63 A.L.R. 292.
Habeas corpus, security for costs in, 81 A.L.R. 154.
Statute regarding security for costs as mandatory or permitting exercise of discretion, 84 A.L.R. 252.
What is an action within statutes requiring security for costs, 131 A.L.R. 1476.
Recovery of damages resulting from wrongful issuance of injunction as limited to amount of bond, 30 A.L.R.4th 273.
What constitutes "fees" or "costs" within meaning of federal statutory provision (28 USCS § 1915 and similar predecessor statutes) permitting party to proceed in forma pauperis without prepayment of fees and costs or security therefor, 142 A.L.R. Fed. 627.
20 C.J.S. Costs § 59 et seq.