The opinion of the court was delievered by
W. B. Hanna and wife broug’ht an action against Charles S. Reeves et al., to foreclose a mortgage on real estate for the payment of certain promissory notes which had been executed by the defendants other than the defendant Esther J. Kasson. The allegation of the complaint was that Mrs. Kasson claimed some interest in the land, and that she was a non-resident of the state; and she was served by publication. After rendition of the judgment, Mrs. Kasson made an application to the court for the vacation of the judgment for reasons which she set forth in her petition, and which were supported by affidavits. The plaintiffs in the action, through their attorney, moved for a cost bond under § 844 of the Code of Procedure, which provides that when a plaintiff in an action resides out of the county or is a foreign corporation, security for the costs and charges which may be awarded against such plaintiff may be reqxured by the defendant. This motion was overruled by the trial court, and said ruling is one of the errors alleged here. The plaintiffs then objected to the manner in which the said Kasson was proceeding, viz.: by affidavit and answer, and the court sus
It is contended by the relators that this proceeding was brought under title 14 of the Code, instead of § 221, and that under said title 14 the petitioner is made a plaintiff in substance and therefore falls within the provisions of § 844, supra. Whether that be true or not, it seems to us, is not important so far as this application is concerned. The oveiTuling of the motion for costs in the first instance did not affect the relators prejudicially, for the court afterwards sustained their objections to the petition and another petition was filed entirely different in substance from the one to which the motion was directed. Ho motion for costs was made then in that proceeding, viz.: the proceeding in which Mrs. Kasson applied for the vacation of the judgment. That case went to trial without objection on the part of the relators so far as the qiiestion of costs is concerned, if we have properly read the record, and the petition to vacate was sustained by the court. Mrs. Kasson then filed her answer, and it was at this stage of the proceeding that the relators moved the second time for a bond for costs. In no event can it be claimed that Mrs. Kasson is a plaintiff in the proceeding which is now before the court, for she stands, so far as that case is concerned, exactly in the same position in which she would
The writ will be denied.
Reavis, Anders and Gordon, J-T., concur.