
    FRIED v. FIRST NAT. BANK AT STROUD.
    No. 8839
    Opinion Filed May 28, 1918.
    Rehearing Denied Dec. 31, 1918.
    (176 Pac. 909.)
    1. Appearance — Judgment — Default Judgment — V acation — Grounds.
    Where a judgment by default has been rendered without the issuance and service of summons, or upon fatally defective summons or process, the defendant during the term such judgment was rendered may appear by motion and have said default judgment set aside on that ground, and the fact that the defendant’s motion contained jurisdictional and nonjurisdietional matters which made the appearance a general appearance does not render the order of the court setting aside the default judgment erroneous.
    2. Costs — Affidavit in Lieu of Costs — Deposit.
    Where a plaintiff files a pauper’s affidavit in lieu of making cost deposit or giving cost bond,- the court may upon proper application, when it appears that the plaintiff was at the time of the commencement of the action and at the time of the hearing of said application able to make cost deposit or give bond in lieu thereof, make an order requiring the plaintiff to make cost deposit or give security for cost within a reasonable time, and, upon failure of the plaintiff to comply with the order of the court by making cost deposit or giving security for cost, dismiss the action.
    (Syllabus by Pryor, O.)
    Error from County Court, Lincoln County; fi. M. Jarrett, Judge.
    Action by A. L. Fried against the First National Bank at Stroud, Okla. Motion to require plaintiff to give security or make deposit for costs was sustained, and on failure to comply therewith, the cause was dismissed and plaintiff brings error.
    Affirmed.
    Erwin & Erwin, for plaintiff in error.
    Thcs. G. Andrews, for defendant in error.
   Opinion by

PRYOR, C.

This action was commenced in the county court of Lincoln county by the plaintiff in error, A. L. Fried, against the First National Bank of Stroud, defendant in error, to recover the sum of $257.40, as a penalty for usurious interest alleged to have been collected from tbe plaintiff by tbe defendant.

On April 19, 1915, a default judgment was rendered in favor of tbe plaintiff and against tbe defendant. On tbe 23d day of April, 1915, at tbe same term, tbe defendant filed its motion to vacate said default judgment, and, after stating that tbe appearance was specially and only for tbe purpose of objecting to the jurisdiction of tbe court,' set forth three grounds on which tbe judgment should be vacated: First, that the summons required defendant to answer at an impossible date; second, tbe president of tbe bank was within tbe county and service could have been made upon him; and, third, that tbe judgment was void because tbe copy of tbe summons served did not have indorsed upon it the amount for which judgment would be taken in case of default. And in said motion tbe defendant asked for an order of the court suspending further proceedings in connection with said judgment pending tbe determination of the motion. The trial court sustained the motion, set aside the default judgment, and quashed the summons. Another summons was issued and served upon the bank.

At tbe commencement of tbe action the plaintiff filed a pauper’s affidavit in lieu of cost. Tbe defendant appeared later in said cause and filed motion to require tbe plaintiff to give security or make deposit for costs. Tbe court sustained tbe motion and entered an order requiring tbe plaintiff within 20 days to make deposit to cover the costs or file bond to secure the costs. Tbe plaintiff failed to make tbe required cost deposit or give cost bond within the time allowed by the court, and tbe court, upon motion of the defendant, dismissed tbe cause.

Tbe plaintiff appealed from the judgment of the trial court dismissing said cause.

The assignments of error of plaintiff may be stated: (1) That the court erred in vacating tbe said default judgment; (2) that tbe court erred in dismissing said cause on the plaintiff’s failure to make cost deposit or give bond in lieu thereof.

As to the first proposition, it is tbe contention of the plaintiff that the defendant joined in its motion to vacate this default judgment nonjurisdictional matters with jurisdictional matters. Notwithstanding tbe motion specifically stated that tbe appearance was a special appearance and for tbe purpose of objecting to the jurisdiction of tbe court only, the appearance in effect was a general appearance, and the court acquired jurisdiction of the defendant, and such general appearance cured all defects in the process and tbe service thereof, and after tbe plaintiff made a general appearance it was error for tbe court to vacate and set aside said judgment and quash the summons.

Tbe plaintiff concedes that the summons and service thereof was defective for tbe reason that tbe summons required tbe defendant to answer on an impossible date, and for the further reason that the amount sought to be recovered was not properly indorsed on said summons as required by tbe statute. This being true, it was prejudicial error for the court to enter default judgment against tbe defendant without proper service. Tbe judgment being erroneously entered, the defendant might appear generally or specially and ask that said default judgment be set aside. The nature of bis appearance made no difference, and be could ask that tbe judgment be set aside on jurisdictional matters as well as nonjurisdictional matters. Especially it was not error for the trial court to vacate tbe default judgment at tbe same term said judgment was rendered.

Conceding that the appearance was general and that tbe court acquired jurisdiction of tbe defendant, the fact that it improperly required the plaintiff to issue and serve another summons could not operate to vitiate its judgment vacating tbe default judgment, and plaintiff having complied with tbe order requiring him to issue and serve another process, cannot now say that the judgment vacating the default judgment is erroneous and prejudicial for that reason.

As to tbe second proposition, tbe dismissing the cause for the reason that tbe plaintiff had not complied with an order of tbe court requiring it to make cost deposit or give bond in lieu thereof, tbe facts are that at tbe commencement of this action the plaintiff filed a pauper’s affidavit in lieu of cost deposit or cost bond. Tbe court granted a hearing on defendant’s motion to require plaintiff to make cost deposit or give .cost bond, at which both plaintiff and defendant appeared by their lawyers. Tbe evidence amply sustains tbe finding of tbe trial court that the plaintiff at the commencement of tbe suit was able to have made the cost deposit required by the statute and was able at the time of the bearing of the motion to make the deposit.

It is tbe contention of the plaintiff that the affidavit as to the ability of plaintiff to make cost deposit is conclusive; that, if the’ affidavit was untrue, then tbe only action that can be taken in regard thereto is to prosecute the plaintiff for perjury under tbe statut*.

It seems tliat this statute in this particular has never been construed by this court or the Supreme Court of Kansas, from which state the statute was adopted. The true purpose of this statute plainly is to enable persons who are not able lay reason of their poverty to make cost deposit or give security for cost to prosecute a just cause without making cost deposit or giving bond, to the end that the courts of justice shall not be closed against any one on account of his poverty, and its purpose is not to serve one who is willing to make an affidavit that he is unable to make cost deposit or give bond, notwithstanding the fact that he is able to do so. If this statute be constructed to mean that the pauper affidavit is conclusive, then any one who is disposed to make such affidavit, regardless of his ability to pay cost or make bond, may prosecute an action at the expense of the county and require the court officials and sheriff to serve without pay. A more salutary construction to be placed on said statute would be that the party’s ability to make cost deposit or give bond is open to investigation by the court; that the court may protect itself against fraud and protect the county against unjust expenses, and not require its officers to serve without compensation.

The Supreme Court of Kansas held that, where a party had made deposit, and the cost deposit was exhausted, it was error for the trial court to dismiss the plaintiff’s cause of action upon his failure to make additional deposit of cost over the showing of the party that he had become unable to make additional cost deposit since the commencement of the action. Hardesty v. Ball, 46 Kan. 555, 26 Pac. 959.

On the other hand, there seems to be no valid reason why the converse of this rule should not be true. If a party, after the commencement of an action filed on pauper’s affidavit, becomes able to make cost deposit or give’bond in lieu thereof, there is no reason why he should not be required to pay the cost, or that the suit should be allowed to proceed at the cost of the county.

The only court that has passed on this question, so far as a diligent search of the reports discloses, is the Supreme Court of the state of North Carolina. The holding of that court under a similar statute to ours sustains the foregoing view. Dale v. Presnell, 119 N. C. 489, 26 S. E. 27; also Moyers v. Moyers, 11 Heisk. (Tenn.) 495.

Therefore the trial court commmitted no error in sustaining the motion of the defendant to dismiss on the failure of the plaintiff to make cost deposit or give bond in lieu thereof, in accordance with its former order.

The judgment should be affirmed.

By the Court: It is so ordered.  