
    LAWRENCE, Plaintiff, v. HUGHES, Circuit Judge, Defendant.
    (156 N. W. 904.)
    (File No. 3990.
    Opinion filed March 16, 1916.)
    1. Mandamus — Alternative Writ Against Circuit Judge — Attorney’s Affidavit, Distinguished from Return.
    In a mandamus proceeding against a circuit judge, in which an alternative writ had issued requiring defendant to dismiss an action or show cause, etc., held, that a statement in an affidavit made by an attorney who confessedly appeared for parties other than defendant, that he was requested by aeffendant to appear and make such showing as deemed by affiant advisable, is not a return by the defendant to the writ.
    
      2. Costs — Security for Costs — Assignment of Judgment as Security, Effect as- to Costs — Accrued Costs — Statute.
    When, after an assignment of a judgment or a cause of action, the action is continued in name of original plaintiff, it should for the purpose of security for costs, he treated as though no such assignment had been made; and, where plaintiff became a nonresident, held, that the security requited under Code Civ. Proc., Sec. 436, providing for security for costs in the manner provided in the two .preceding sections, suchi security must he unrestricted; Sec. 434 making such security liable for costs taxed against plaintiff in both the trial court and that to which the cause may he carried. So held, where the undertaking for costs was restricted to costs accruing after date of order requiring security for costs, and where the assignees under the assignment of judgment held the judgment merely as security for plaintiff’s indebtedness to them.
    3. Costs — Incomplete Security for — Granting Further Time, or Dismissal?
    In mandamus to require circuit judge to dismiss an action for failure to provide a proper cost bond, held, that where assig-nee’s of plaintiff’s judgment in the action had given security for such costs only as might accrue after order for security for costs had been made, the Supreme Court will give further opportunity for furnishing security for costs, and will iesne peremptory writ against trial judge requiring him to dismiss the action unless complete security for costs be furnished within a specified time.
    Original proceedings in mandamus, by Henry J. Lawrence, against John F. Hughes as Judge cf the Circuit Court of the Sixth Judicial Circuit, in and for Sully County.
    Peremptory writ issued.
    
      Robert B. Fisk, for Plaintiff.
    
      Gaffy & Stephens, for assignees of judgment.
   GATES, J.

In the cause of McGilvery v. Lawrence a judgment was entered in the circuit court of the Sixth judicia- circuit within and for Sully county in favor of plaintiff ard againsf the defendant, for $1,944.80 and costs on April 26, 1912. The judgment was assigned to the National Bank of Commerce of Pierre, S-.'D., by an assignment in writing dated June 26, 1912, and filed in the office of the clerk of said court on August 23, 1912. The assignment recites:

“And same is given as security for the payment in part of a certain promissory note * * * dated December 1, 1911.”

In one of the affidavits in the files .in.-said .cause it is alleged that the Merchants’ Loan & Trust .Company^of".Rapid) City, S. D., is owner of said • assignment of- judgment jointly with said National’Bank ' of Commerce — “said assignment 'having been’made to ■ saifl corporations, equally as security |or ipctejbtedness, pf -the plaintiff. J-. W. McGilvery to them.” • •. ,

Upon'appeal to-this Court' the judgment’“ill’’said cause was ''reversed and the cause remanded. McGilvery v. Lawrence, 35 S. D. 443, 152 N. W. 698. After the .reniditioppaf the judgment in'-the-trial court McGilvery, then a resident-.of this state, became and -still is a resident of blie state of Minnesota. After the filing- óf the remittitur from 'this court in the trial/court Lawrence made a motion for security for oasts .on the.ground' that McGilvery was a nonresident of this state. 'Thereafter and on September 30, 1915, the trial court-made ancorder requiring se--ctírityJ for-costs or'in lieu thereof,- ordering1 'a'r'-dismissal of the ’action. /On October'26, 1915; .an 'undertaking'/vvas filed’in said cause binding the sureties — '

páy-’-such -costs in ■said -'cause as may accrlie dr' -be taxed, or •for which the plaintiff J. W. McGilvery ináy ‘hefeo-m'S liable-ini this ‘cause after the' date of ' the said ofdbr of court,¿requiring the furnishing of security for costs.” (The italics are ours..)

Thereupon. Lawrence served notice upon ^-IcGilvery-that said undertaking wa-s not accepted because it-neither -complied with- the law nor with the order o-f -court. N:o further security .for costs has (been furnished. Thereupon Lawrence, in-.No^-epi.be'r, - 1913, moved for a judgment dismissing’ the- 'áetróíif for failure to furnish security -for costs, which motion- was 'denied (by the trial -court -December 28, 1915-. •' ’ -■ ” ' ’ -

On March 7, -1916, an alternative'writ of-mandamus was ’Issued -by this court requiring the -defendant herein,‘ 'the judge of "s-aicl circuit -court, to- -dismiss saii-d action or-show hdu-se why -he has-not done so. Upon the return -day the-cir(iuit',''-judge> neither appeared -ini'.person nor by-hi-s attorney, but an- affidavit was filed 'by L. L. Stephens who- confessedly appears- as attorney1 for the National Bank of Commerce and the Merchants” Lo-ainTrust -‘Company. Th said affidavit it is--recited:"

“And affiant' has been requested by 'said’ ÍTugííés to’appear in this proceeding' and- to make such showing as is deemed by affiant advisable therein.”

We must ancl .do hold that the circuit court judge has failed to .make return to the writ. But. if we should hold that the return made by counsel for MeGilv-ery’s assignees, was a return by thp judge, there is- no dispute as to the important matters of fact set forth in the application for -the writ. We. will therefore consider what relief- the applicant is entitled to uppra his own showing. Sections 433, 434, and 435, -.C. C. P., govern* the usual proceedings in an application for security f-or cost§, in which it is provided that if security be n-ot. furnished, the action shall be'dismissed at .any proper time before judgment. It was,argued orally by counsel for -the assignees that his clients- were now .the real parties in interest, and that inasmuch .-as they weiie both residents of. tjai’s .state no security for costs could -be. required,',,. and it was asserted that it w,as for that reason the trial. oaur-tmad-e the order of .December 28, 1915. . . : .

The following questions- present -themselves. -If such- contention be correct, would- the 'assignees 4>e« «liable for the costs which- have already -been adjudged in Lawrence’s favor and his costs upon the first trial in the circuit-.court if -he should ultimately prevail? Under section 430,-,C.. C,(;.P„- it is provided:-

“In actions in which the cause of action -shall, by assignment after the commencement of the- action, or in- any other- manner, become the .property of -a person not -a party to the-action, such person -shall be .liable for the costs .in- .the.-same manner as if he were, a' .party, ancl payment -thereof may be enforced by attachment.” .-••-•! T. -

■Does that section5 apply to -one to-whom- the judgment was -merely assigned .as security ? Even if the «assignment of the cause of -action were absolute, -would.'the-assignee" 1bé; liable for antecedent costs? Section. 91, C. C.- P.,-provides':1

- “In' case' of any other transfer óf interest, the -action- shall ba continued in the name of the original parity,- 6r the court may allow the person to whom the transfer is made ’to” he'substituted in the action.” '

Does th-at section authorize the substitution of a party as ' pláintiff who .is’ only -an. assignee for security ? ! D-oefe an assignee of a judgment simply for security become an assignee of the cause of action after the judgment has been vacated;?

These are questions that ought not to be decided, except in •an .action or proceeding in which the assignees are actual parties. It seems to us that defendant ought not at this time to be left in uncertainty ;as to whether he has or has mot securit}- for costs. We ought not to put him off until the end of the litigation when, if successful, he may meet the possible defense that the assignees are not liable for the costs antedating the order of September 30, 1915, because they were assignees simply for security.

Without deciding any of the .above questions, we are of the opinion that when, .after assignment, an action is continued in the name of the original plaintiff it 'should, for the purpose of security for costs, be treated as though no such assignment had been made. In this view the security furnished is manifestly incomplete under the provisions of the order of September 30, 1915, and of section 436, C. C. P., which provides:

“If the plaintiff in an action, after its commencement, become a nonresident of the state, he shall give security for costs ■in the manner and under the restrictions provided in the two proceeding sections.”

The liability of a surety for costs must, under the provisions of that section, be, unrestricted.

How then should we dispose of the case? Should we direct the trial court to dismiss the action or should we give a further opportunity for the furnishing of security for oosts? We think we should follow the latter course. In Murtha v. Howard, 20 S. D. 152, 105 N. W. 100, this court quoted with approval the following from' 11 Cyc. 190:

“If there has been an attempt to comply with the law by giving security, but it is for any reason defective, the cause should not be dismissed, without giving the party an opportunity to give additional and sufficient security.”

Such is this case. There has been an attempt to furnish security which we find insufficient.

A peremptory writ of mandamus will issue requiring the defendant as judge of said court to dismiss the said action, unless full arad complete security for costs be furnished. Inasmuch as it appears from the files in this matter that a term of court will be -held in said county of Sully on March 28, 1916, such security should -be furnished not later than March 20, 1916. This being a proceeding against a circuit court judge, no costs will be taxed.  