Ark. Code Ann. § 16-68-301 (2020)
Persons required to give bond for costs — Deposit in lieu of bond — Dismissal of action for noncompliance
- Before commencing an action, a plaintiff who is a nonresident of this state or a corporation other than a bank created by the laws of this state shall file in the clerk's office a bond, with sufficient surety and to be approved by the clerk, for the payment of all costs which may accrue in the action in the court in which it is brought or in any other court to which it may be carried, either to the defendant or to the officers of the courts.
- Instead of filing a bond, the plaintiff may deposit with the clerk of the court a sum of money sufficient to pay all costs that have accrued or will probably accrue in the action, subject to the sum's being increased at any time the court may deem necessary and by its order required.
- An action in which a bond for costs is required by subsection (a) of this section and has not been given shall be dismissed on the motion of the defendant at any time before the judgment, unless the bond is filed in a reasonable time to be allowed by the court after the motion is made therefor, securing all past and future costs. The action shall not be dismissed or abated if a bond for costs is given in such time as the court may allow.
History. Civil Code, §§ 698, 699; C. & M. Dig., §§ 1844, 1845; Pope's Dig., §§ 2363, 2364; Acts 1941, No. 344, § 1; A.S.A. 1947, §§ 27-2301, 27-2302.
Case Notes
In General.
Bond not in statutory form is a good common-law bond. Munzesheimer v. Byrne, 56 Ark. 116, 19 S.W. 320 (1892).
A bond may be required to secure costs of appeal. Chambers v. Ogle, 114 Ark. 237, 169 S.W. 795 (1914).
Cash Deposit.
There is substantial compliance with this section when plaintiff at the time of commencing an action makes a cash deposit sufficient to cover the costs then accrued. Harral v. Helton, 230 Ark. 913, 327 S.W.2d 549 (1959).
Deposit Insufficient.
Where the deposit is insufficient the trial court may require plaintiff to increase it, but the trial court's failure to do so is not sufficient ground for dismissing the cause of action. Harral v. Helton, 230 Ark. 913, 327 S.W.2d 549 (1959).
Failure to Give Bond.
Suit against nonresident corporation will not be dismissed for failure to give bond on appeal if none was asked below. Adair v. Quincy Stove Mfg. Co., 119 Ark. 263, 177 S.W. 909 (1915).
In an action on a note against the appellant by the appellee, the appellant may, at any time before judgment, require the appellee to give a bond for costs or have the suit dismissed, but the appellant's failure to give a bond is unavailing on appeal when the record fails to show the appellee asked for a dismissal, because of the failure to give bond. Adair v. Quincy Stove Mfg. Co., 119 Ark. 263, 177 S.W. 909 (1915).
Failure of chancery court to require nonresident to make bond in habeas corpus proceeding to regain custody of her children even if it constituted error was harmless where the nonresident prevailed both in lower court and on appeal. Fulks v. Walker, 225 Ark. 390, 283 S.W.2d 347 (1955).
Failure to file the proper cost bond at the proper time is a matter of abatement and does not go to the merits of the case. Harral v. Helton, 230 Ark. 913, 327 S.W.2d 549 (1959).
Nonresident.
This section does not apply to nonresident who sues as administratrix and who has given bond as administratrix in this state. Warren & O.V.R.R. v. Waldrop, 93 Ark. 127, 123 S.W. 792 (1909).
A nonresident intervenor seeking to set aside the sale of property held under execution of judgment is for all practical purposes a plaintiff and must give the bond required by this section. Charlesworth Pontiac Co. v. Walker, 238 Ark. 940, 385 S.W.2d 797 (1965).
A nonresident intervenor, who gave no bond, in seeking to set aside a sale held under execution of judgment was for all practical purposes a plaintiff and the cause should have been dismissed. Charlesworth Pontiac Co. v. Walker, 238 Ark. 940, 385 S.W.2d 797 (1965).
Surety.
Under cost bond of nonresident plaintiff given under and in the language of this section, the surety continues liable for costs accruing after death of plaintiff and revivor of the action in the name of his special administrator appointed under § 16-62-106; the latter being relieved from liability for costs by § 16-62-106(d). United States Fid. & Guar. Co. v. St. Louis, I.M. & S. Ry., 135 Ark. 1, 204 S.W. 416 (1918).
Timeliness of Objection.
Motion by plaintiff to dismiss petition of intervener for failure to file bond, which was filed after judgment in favor of plaintiff, was filed too late. Mothershead v. Douglas, 219 Ark. 457, 243 S.W.2d 761 (1951).
Cited: Levi Strauss & Co. v. Crockett Motor Sales, Inc., 293 Ark. 502, 739 S.W.2d 157 (1987).