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Baker v. Green

30 Del. 113 7 Boyce 113 Court Superior Court, Kent County, Decision date 1918-04-24 Docket Covenant No. 31 English

Delivered by Pennewill, C. J.,

Contents

Majority

p. 113
Lewis L. Baker and Emily R. Baker vs. Sarah J. Green and Charles E. Green.

Headnote

Costs—Security for Payment—“Resident.”
Where plaintiff was a resident at the time of commencement of the action, but had moved at the time application is made for security of costs, she is not a resident within Rev. Code 1915, § 4174) providing for security of costs against non resident plaintiffs.
(April 24, 1918)
Pennewill, C. J., and Boyce, J., sitting.
John D. Hawkins for plaintiff.
John B. Hutton for defendant.
Superior Court, Kent County,
April Term, 1918.
Covenant No. 31,
February Term, 1915.
Action by Lewis L. Baker and his wife against Sarah J. Green and her husband. On motion of defendants for security for costs.
Order granted.
Motion for rule upon plaintiffs for security for costs and affidavit by Sarah J. Green, one of the defendants, under Section 4174, Rev. Code 1915, made and filed the day preceding that set for the trial of the case. When the case was called, counsel for the plaintiffs objected to an order for security for costs on the ground that the plaintiffs were residents of the state.
One of the plaintiffs, Emily R. Baker, was called, and, in substance, testified that she and her husband, the other plaintiff, are residents of Philadelphia and have been living there since February of the present year, but have not been living in Delaware for about two years; that they intend to return to Delaware to live when they can obtain a suitable place in which to reside.

delivering the opinion of the court:

It clearly appears from the admissions of the plaintiff that she is not a resident of this state within the meaning of the statute requiring security for costs, in that she has not a place of abode within this state at which a copy of process could be left.

p. 114
The fact that the plaintiff was a resident of this state, and had such an abode at the time the action was brought, does not relieve her from entering security for costs if she is not a resident of the state within the meaning of the statute at the time application for security is made. 1 Woolley, Del. Prac. § 305.

It is ordered that security for costs be entered.