Colorado § 13-16-101 - Security for costs.

§ 13-16-101. Security for costs.

(1) In all actions on official bonds for the use of any persons, actions on the bonds of executors, administrators, or guardians, and qui tam actions on any penal statute, the person or plaintiff for whose use the action is to be commenced, before he or she institutes such suit, shall file or cause to be filed with the clerk of the court in which the action is to be commenced an instrument in writing as described in subsection (3) of this section for security for the payment of costs of suit.

(2) In all cases in law and equity where the plaintiff, or the person for whose use an action is to be commenced, is not a resident of this state, upon motion of the defendant or any officer of the court pursuant to section 13-16-102, the court may require the nonresident plaintiff to give an instrument in writing for the payment of costs of suit as described in subsection (3) of this section; except that, to ensure that access to the courts is not unreasonably denied, a court shall not require an instrument in writing for the payment of costs of suit in excess of five thousand dollars.

(3) As used in this section and section 13-16-102, "instrument in writing" means an instrument in writing of some responsible person, being a resident of this state, to be approved by the clerk, whereby such person shall acknowledge himself or herself bound to pay, or cause to be paid, all costs which may accrue in such action either to the opposite party or to any of the officers of such courts, which instrument may be in form as follows:

A. B.

vs.

.......... Court.

C. D.

​​ I do hereby enter myself security for costs in this case, and acknowledge myself bound to pay, or cause to be paid, all costs which may accrue in this action, either to the opposite party or to any of the officers of this court pursuant to the laws of this state.

..............................................................

Dated this ........ day of ........, 20.. .

Source: R.S. p. 153, § 1. G.L. § 323. G.S. § 397. R.S. 08: § 1064. C.L. § 6580. CSA: C. 43, § 10. CRS 53: § 33-1-1. C.R.S. 1963: § 33-1-1. L. 2009: Entire section amended, (HB 09-1305), ch. 311, p. 1690, § 1, effective September 1.

ANNOTATION

Law reviews. For article, "Bonds in Colorado Courts: A Primer for Practitioners", see 34 Colo. Law. 59 (Mar. 2005). For article, "Shifting Fees for Copyright Trolls", see 50 Colo. Law. 45 (Jan. 2021).

Nonresident plaintiff in suing out a writ of error must file cost bond. A writ of error is a new suit, and before it can be prosecuted, if the plaintiff in error is a nonresident, he must file a cost bond. If he fails to do so, he has no standing in court; his case cannot be heard on the merits, if objection be made. W. Union Tel. Co. v. Graham, 1 Colo. 182 (1870); Talpey v. Doane, 2 Colo. 298 (1874).

The filing of a bond for a supersedeas cannot accomplish that purpose, or in any sense waive the necessity of filing security for costs. Filley v. Cody, 3 Colo. 221 (1877); Fifer v. Fifer, 120 Colo. 10, 206 P.2d 336 (1949).

Despite plaintiff's non-citizen status, the proper determination of her residence, which is necessary for purposes of this section, was not dependent on her immigration status but, instead, on the evaluation of her place of domicile and her subjective intent to remain in the state. Munoz-Hoyos v. de Cortez, 207 P.3d 951 (Colo. App. 2009).

Trial court erred in ruling that plaintiff's non-citizen status alone precluded her from qualifying as a resident for purposes of this section and in requiring her to post a cost bond on that basis. Munoz-Hoyos v. de Cortez, 207 P.3d 951 (Colo. App. 2009).

In absence of judgment for costs, surety would not be liable. The payment of all costs occasioned by the plaintiff in error without regard to the ultimate judgment of the court is secured by the cost bond. The officers of the court are protected. If there were no cost bond and the officers of the court had to rely upon the supersedeas bond for the costs made by the plaintiff in error, then in the absence of a judgment against him for cost, his security would not be liable for any. Filley v. Cody, 3 Colo. 221 (1877).

Court may order that cost bond be filed within thirty days. Ferrara v. Auric Mining Co, 20 Colo. App. 411, 79 P. 302 (1905).

Where a writ was dismissed for want of a cost bond, a new writ may be prosecuted in the same cause. W. Union Tel. Co. v. Graham, 1 Colo. 182 (1870).

A bond of a corporation which is executed by an attorney in fact, appointed by the president, is well executed. W. Union Tel. Co. v. Graham, 1 Colo. 182 (1870).

There is no statutory authority to enter a summary judgment against the surety upon a cost bond, and in the absence of such statutory authority, before any judgment could be taken against a surety upon such a bond, an opportunity must be provided said surety to assert any defense which he might have to an action seeking to enforce his liability as surety. Fifer v. Fifer, 120 Colo. 10, 206 P.2d 336 (1949).

Section does not apply to actions brought in federal court. In an action in the United States district court, defendant's motion, grounded upon this section, that plaintiff, a nonresident, be required to furnish a cost bond was denied, for the federal rules of civil procedure have repealed the conformity act, and state practice in this connection may no longer be invoked under its terms. Nat'l Distillers Prods. Corp. v. Hindech, 10 F.R.D. 229 (D. Colo. 1950).

Court has no discretion under this section, but must require security from a nonresident plaintiff. Lewis v. Keim, 883 P.2d 610 (Colo. App. 1994).

Section 13-16-103 provides judges with the authority to waive cost requirements under this section and § 13-16-102 and, therefore, provides sufficient authority to permit a plaintiff to proceed when the plaintiff is a poor person and unable to pay costs and expenses. Walcott v. District Ct., 2nd Jud. Dist., 924 P.2d 163 (Colo. 1996).

Husband who sought modification of prior dissolution decree was person for whose use the action was commenced and, because he was a nonresident, trial court properly required him to post bond. In re Kronbach, 757 P.2d 175 (Colo. App. 1988).

Applied in Glickman v. Mesigh, 200 Colo. 320, 615 P.2d 23 (1980).