Sheldon v. Nick & Sons, Inc.
| Decision Date | 14 September 1948 |
| Citation | 253 Wis. 162,33 N.W.2d 260 |
| Court | Wisconsin Supreme Court |
| Parties | SHELDON v. NICK & SONS, Inc., et al. |
OPINION TEXT STARTS HERE
Appeal from an order of the Circuit Court for Lincoln County; Arold F. Murphy, Circuit Judge.
Affirmed.
Action commenced by G. M. Sheldon, as a taxpayer and resident of the city of Tomahawk, by the service of a summons and complaint in November 1942 on the defendants, Nick & Sons, Inc., Emma Musson, National Surety Corporation of New York and the city of Tomahawk. The purpose of the action is to recover from the defendants, for and on behalf of and for the benefit of said city, certain funds which plaintiff alleges are property of the city and were paid to Nick & Sons, Inc., by the defendant Musson, as treasurer of the city, without valid authority. On June 25, 1947, the circuit court on the motion of the defendant National Surety Corporation of New York entered an order dismissing the action as to all of the defendants on the ground that the plaintiff had failed to comply with the provisions of sec. 19.03, Stats. Sheldon appealed from that order. On May 11, 1948, this court ordered said appeal dismissed as to the defendant National Surety Corporation of New York on the ground that appellant had failed to duly serve copies of his brief and appendix on said defendant as prescribed by Rules Nos. 17 and 14 of this court, St.1947, §§ 251.27, 251.273. G. M. Sheldon, of Tomahawk (R. E. Puchner, of Wausau, of counsel), for appellant.
Fisher, Reinholdt & Peickert, of Stevens Point, and Treis & Corrigan and Alexander Lakes, all of Milwaukee, for respondents.
In this action by the plaintiff Sheldon, as a resident and taxpayer of the city of Tomahawk, against a public officer, Emma Musson, the city treasurer of Tomahawk, National Surety Corporation of New York (hereinafter called the ‘Surety Corporation’), the surety upon her official bond, and also Nick & Sons, Inc., he seeks to recover for the benefit of the city, the obligee named in the bond, for an alleged breach by the city treasurer of conditions of that bond by her unlawful transfer of $4,055.34 of the city's funds to Nick & Sons, Inc. Consequently there are applicable to this action the provisions in sec. 19.03, Stats., that ‘Every person commencing an action against any officer and his sureties upon his official bond, except the obligee named therein, shall give security for costs by an undertaking as prescribed in section 271.28(3) or 307.09, respectively, and a copy thereof shall be served upon the defendants at the time of the service of the summons.’
The language in these provisions is clear, unequivocal and definite. Thereby the plaintiff in such an action is absolutely required to ‘give security for costs by an undertaking as prescribed in section 271.28(3) or 307.09, respectively’, and to serve a copy thereof ‘upon the defendants at the time of the service of the summons.’ That the word ‘shall’, where it appears in the above italicized provisions in sec. 19.03, Stats., is used in a mandatory sense is clear. In State ex rel. Firemen's Fund Ins. Co. v. Hoppmann, 207 Wis. 481, 240 N.W. 884,242 N.W. 133,84 A.L.R. 249, it was held that the word ‘shall’ in sec. 271.30, Stats.1931, now sec. 271.28(2), Stats.1947, which provides that ‘upon proof by affidavit entitling the defendant thereto the court or judge shall make an order requiring the plaintiff to file security for costs', is used in a mandatory sense. By analogy, particularly since we are dealing here with the same subject, viz., security for costs, the word ‘shall’, where used in sec. 19.03, Stats., likewise denotes an absolute requirement.
In this case plaintiff not only failed to serve upon any of the defendants at the time of the service of the summons a copy of the undertaking required to be given as security for costs, but he also failed to give or file any security for costs whatever, as is absolutely required by sec. 19.03, Stats. The security for costs thereby required must conform to the provisions of sec. 271.28(3) or sec. 307.09 of the statutes, and by the express provision in sec. 271.28(3), that ‘Upon failure to file such undertaking the court may, upon motion of the defendant, dismiss the action’, the penalty prescribed for failing to file the required security for costs is the dismissal of the action. Likewise, in relation to said sec. 307.09, Stats., (mentioned in sec. 19.03,...
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Pigg v. Brockman
...action when appropriate objection is timely urged by defendant. Kiesel v. District Court, 96 Utah 156, 84 P.2d 782; Sheldon v. Nick & Sons, 253 Wis. 162, 33 N.W.2d 260; Art. 5, § 20, Idaho Constitution; Clemens v. Kinsley, 72 Idaho 251, 239 P.2d 266; Shell Oil Co. v. Superior Ct., 2 Cal.App......
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Haynes v. White
...that a plaintiff is not a resident of Wisconsin, the order for security for costs is nondiscretionary. Sheldon v. Nick & Sons, Inc. , 253 Wis. 162, 33 N.W.2d 260 (1948) (in statutory predecessor to WIS. STAT. § 814.28 requiring plaintiff to give security for costs, the word "shall" is manda......
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Latham v. Casey & King Corp.
...suit or in proceeding against those served; or sec. 271.28(3) for failure to give security for costs. Sheldon v. Nick & Sons, Inc. (1948), 253 Wis. 162, 33 N.W.2d 260. Such statutes do not exhaust the power or imply the court does not have the inherent power to fashion sanctions and penalti......
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Broadbent v. Hegge
...not file an undertaking for costs and did not serve a copy of such undertaking with the summons.) The case: Sheldon v. Nick & Sons, Inc. (1948), 253 Wis. 162, 165, 33 N.W.2d 260, 263, dealing with the effect of a noncompliance with sec. 19.03. In an action brought by a taxpayer against the ......