Horace W. KIMBALL, Appellant,
PHOENIX NEWSPAPERS, Inc., a corporation, Appellee.
[79 Ariz. 323] Moore & Moore, Phoenix, for appellant.
Gust, Rosenfeld, Divelbess & Robinette, and James F. Henderson, Phoenix, for appellee.
LA PRADE, Chief Justice.
This case presents an appeal from a judgment dismissing plaintiff's complaint for libelous publication upon the ground that plaintiff failed to post a bond for security for costs after an order had been made therefor. The motion to require plaintiff to file a cost bond was filed and presented after the court had denied defendant's motion for summary judgment.
It is the position of plaintiff-appellant that the trial court was without authority to make the order requiring plaintiff to file a bond securing costs after the court had entertained and tried the issue of law presented by defendant's motion for summary judgment. Plaintiff asserts that the applicable rule relating to security for costs
is set forth in Section 21-601, A.C.A.1939, which in part is as follows:
When may be required.-'At any time before trial of an issue of law or fact, on motion for the defendant, supported by affidavit showing (* * * non-resident, etc.), the court shall order the plaintiff to give bond for the security for the costs of the action. * * *'
Defendant's motion for summary judgment read as follows:
'Comes now defendant, Phoenix Newspapers, Inc., and respectfully moves the Court to enter judgment that the publications complained of as having been published as set forth in Paragraph 2 of Plaintiff's complaint were publications of public interest, communicated by one whose right it was to inform the public of the matter, and that therefore the publication was qualifiedly privileged.'
Appellee contends that its motion for security for costs did not come too late, and that the rule set forth in Section 21-601, supra, has no application. Its position is that
'The Motion for Summary Judgment did not ask for a final determination of the rights of the parties or for [79 Ariz. 324] judgment against the Plaintiff in part or in full. As appears on the face of the Motion and the Memoranda in support of the Motion for Summary Judgment, the purpose of the Motion was to reach a procedural question, namely, were the publications complained of qualifiedly privileged upon their face. If they were, the Plaintiff would then have the initial burden of proving: (1) a falsity of the publication; and (2) that the publisher published the publications with actual malice, before the Plaintiff could go into the question of actual damages.'
Defendant took this so-called procedural tack relying on Rule 56(b), Rules Civ.Proc. Section 21-1211, A.C.A.1939, which reads as follows:
'A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.' (Emphasis supplied.)
In this behalf defendant argues that all it sought by its motion for summary judgment was a particular judgment or determination that the complaint showed on its face that the publications complained of were qualifiedly privileged, and that any determination made on this issue was not a 'trial' within the purview of Section 21-601, supra. It is suggested that the word 'trial' as used in that section contemplates a
'* * * full public hearing before the Court or to a jury, in which parties are allowed the right of cross-examination, and at which a final determination ...