Courts; Application of Prosecution Bonds Under G.S. 1-109 in Small Claims Actions

Subject:

Courts; Application of Prosecution Bonds Under G.S. 1-109 in Small Claims Actions

Requested By:

Jane M. Eason Civil Magistrate New Hanover County

Question:

Do the provisions of G.S. 1-109, which require a $200.00 plaintiff’s bond for costs when moved by defendant, apply to actions pending in Small Claims Court?

Conclusion:

No.

G.S. 1-109 is as follows:

At any time after the issuance of summons, the clerk or judge, upon motion of the defendant, shall require the plaintiff to do one of the following things and the failure to comply with such order within 30 days from the date thereof shall constitute grounds for dismissal of such civil action or special proceeding:

(1)

Give an undertaking with sufficient surety in the sum of two hundred dollars, with the condition that it will be void if the plaintiff pays the defendant all costs which the latter recovers of him in the action.

(2)

Deposit two hundred dollars ($200.00) with him as security to the defendant for these costs, in which event the clerk must give to the plaintiff and defendant all costs which the latter recovers of him in the action.

(3)

File with him a written authority from a superior or district court judge or clerk of a superior court authorizing the plaintiff to sue as a pauper: Provided, however, that the requirements of this section shall not apply to the State of North Carolina or any of its agencies, commissions or institutions, or to counties, drainage districts, cities and towns; provided, further, that the State of North Carolina or any of its agencies, commissions or institutions, and counties, drainage districts, cities and towns may institute civil actions and special proceedings without being required to give a prosecution bond or make deposit in lieu of bond.

The object of the prosecution bond is to secure the defendant in the recovery of costs wrongfully paid. Waldo v. Wilson, 177 N.C. 461, 100 S.E. 182 (1919). It is apparent from reading this statute that the plaintiff’s bond is not automatically required, but is in the nature of a remedy which the defendant can seek, while litigation is in progress, to secure repayment of costs advanced by him in the event he prevails. (Of course, if the action goes against the defendant, he may himself be taxed with the costs). Hence, the plaintiff’s prosecution bond under G.S. 1-109 is a provisional or incidental remedy available the defendants.

G.S. 7A-231 provides as follows:

The provisional and incidental remedies of claim and delivery, subpoena duces tecum,
production of documents and orders for the relinquishment of property subject to a possessory
lien pursuant to G.S. 44A-4(a) are obtainable in small claims actions.The practice and procedure
provided therefor in respect of civil actions generally is observed, conformed as may be required.
No other provisional or incidental remedies are obtainable while the action is pending before the magistrate.

It is the opinion of the Attorney General that the plaintiff’s prosecution bond set out in G.S. 1-109
is one of the provisional or incidental remedies, which are not obtainable while a civil action is
pending before the magistrate by virtue of the last sentence of G.S. 7A-231. Of the two, the latter
is more particular and therefore controls. See State v. Leeper, 59 N.C. App. 199, 296 S.E. 2d 7,
cert. denied, 307 N.C. 272, 299 S.E. 2d 218 (1982).

In reaching this conclusion the Attorney General has considered and rejected, as an argument against his opinion, that G.S. 1-109 is not contained in Subchapter XIII of Chapter 1, entitled Provisional Remedies, or in Subchapter XV, entitled Incidental Procedure in Civil Actions. He notes first that lis pendens, which is closely linked to attachment, is included in the same subchapter as G.S. 1-109, suggesting subchapters XIII and XV are not all inclusive. He notes second that of the four "provisional and incidental remedies" explicitly allowed in small claims actions by G.S. 7A-231, only "claim and delivery" is included either in Subchapter XIII or Subchapter XV, again suggesting that they are not all-inclusive. Finally, he notes that the titles of statutes, and especially their headings, are not part of the statutes and do not control their construction. State v. Welsh, 10 N.C. 404 (1824); Cram v. Cram, 116 N.C. 288, 21 S.E. 197 (1895).

Lacy H. Thornburg Attorney General

James C. Gulick Special Deputy Attorney General