Recently, I was in court on the trial date for what I thought was going to be a routine forcible entry and detainer action. I was representing an out of state property owner who was seeking to evict unlawful occupants from his newly purchased home in the suburbs. Opposing counsel failed to show up but had the matter covered by another attorney. Since counsel and her clients were not present, the attorney covering for her asked for a continuance which was denied. When we stepped up, I called my only witness, the property owner, and then I got all the relevant documents into evidence. I have done this numerous and I thought I was going to get an order of possession. However, the attorney proceeded to cross examine my witness and asked him to identify his residence. As stated before, the client was from out of state, but I did not think that was going to be a problem. After identifying his address, the attorney moved to dismiss my case. As support for his motion, he cited 735 ILCS 5/5-101-103. Under these sections, an out of state Plaintiff is required to post a security for costs. This is a very archaic part of the Code of Civil Procedure and it is very rarely used anymore. In fact, the only other place I have seen a document that purports to be a “security for costs” is on the third floor of Dupage Judicial Center. They have an old artifact framed and signed by Abraham Lincoln whereby he was posting security for an out of state client. This rule is a typical example of a rule that once had a relevant purpose but that has now outlived its usefulness. At the time of my trial, I had never heard of this rule. The judge had never heard of it either, and he quickly had to pull it out his copy of the Code and look over the statute. I later learned more about this statute and its application in Illinois case law, but at the time I had no clue how to object to this motion. In fact, according to the case law that I later read, the motion was not timely brought to the court and was thus, not enforceable. But, just from the plain language of the statute the judge had to either dismiss my case or allow me a continuance to file the relevant paperwork. The statute reads as follows:
§ 5-101. Security for costs. In all actions in any court on official bonds for the use of any person, actions on the bonds of executors, administrators or guardians, qui tam actions, actions on a penal statute, and in all civil actions, where the plaintiff, or person for whose use an action is to be commenced, is not a resident of this State, the plaintiff, or person for whose use the action is to be commenced, shall, before he or she institutes such action, file, or cause to be filed, with the clerk of the court in which the action is to be commenced, security for costs, substantially in the following form:
A B v. C D--(Title of court.)
I, (E.F.) enter myself security for all costs which may accrue in the above entitled action.
Dated this .... day of ...., ....
§ 5-102. Approval--Effect of bond. Such instrument shall be signed by some responsible person, being a resident of this State, and be approved by the clerk, and shall bind such person to pay all costs which may accrue in such action, either to the opposing party or to any of the officers of the court in which the action is commenced, or to which it is removed by change of place of trial or appeal.
§ 5-103. Dismissal for want of security. If any such action is commenced without filing such written instrument, the court, on motion, shall dismiss the same, and the attorney of the plaintiff shall pay all costs accruing thereon, unless the security for costs is filed within such time as is allowed by the court, and when so filed it shall relate back to the commencement of the action; the right to require security for costs shall not be waived by any proceeding in the action.
After reading the case law, I found out some important things about this statute. First, a motion to dismiss based on these grounds must be brought at the earliest possible moment. A court should not enforce such a motion when it is brought right before trial. Second, the form identified above in section 5-101 is sufficient and no bond should be required. Basically, the attorney or any other responsible adult in Illinois that is not a party to the case can post security for costs. Third, although still enforced, the court should grant leeway to a party that substantially conforms to the statute and should give leave to the out of state party to file its security for costs. Such filing relates back to the filing of the case. See LEASE PARTNERS CORP. v. R & J PHARMACIES, 768 N.E.2d 54, 329 Ill. App.3d 69, 263 Ill.Dec. 294 (2002).