Bomar v. Asheville & S.R. Co.

• Decision Date: 26 March 1889
• Citation: 9 S.E. 512,30 S.C. 450
• Parties: BOMAR et al. v. ASHEVILLE & S. R. CO.
• Court: South Carolina Supreme Court

9 S.E. 512

30 S.C. 450

BOMAR et al. v. ASHEVILLE & S. R. CO.

Supreme Court of South Carolina

March 26, 1889

Appeal from common pleas circuit court of Spartanburg county ALDRICH and KERSHAW, Judges.

Action by Martha Isabel Bomar and husband against the Asheville & Spartanburg Railroad Company, to recover damages for injuries alleged to have been sustained by feme plaintiff while a passenger on the defendant's road. Plaintiffs appeal from a judgment of nonsuit, entered for failure to comply with an order requiring security for costs.

Thomson Nicholls & Moore, for appellants.

Duncan & Sanders and J. C. Haskell, for respondent.

MCIVER J.

On the 28th March, 1887, an order was granted by his honor, Judge ALDRICH, requiring the plaintiffs, who are and were then non-residents of the state, to enter into security for costs "by the first day of the next term of this court, and on failing to do so that they be nonsuited." It is stated in the "case" that, when this order was made, the right of the defendant to require security for costs was neither admitted nor denied, but the granting of the order was not resisted, upon the ground that the defendant had no right to require a non-resident to enter into security for the costs of an action instituted by him in the courts of this state. At October term, 1888, a motion was submitted by defendant to his honor, Judge KERSHAW, to dismiss the complaint, and for leave to enter up judgment of nonsuit upon the ground that security for costs had not been entered as required by the former order of the court. At the hearing of this motion a note of J. S. R. Thomson, Esq., one of the attorneys for the plaintiffs, was exhibited, of which the following is a copy, in which we have endeavored to preserve the interlineation and erasure as they appear in the original, to-wit:

"$130.00. Due F. M. Trimmier, clerk, one hundred and thirty dollars, on demand. The same being given him in the matter of Mrs. Bomar vs. R. R., for his receipt to me for deposit for security for costs.

"23rd July, 1887. J. S. R. THOMSON."

On this note appears the following indorsement, in the handwriting of F. M. Trimmier, the then clerk:

"Mrs. Bomar vs. The A. & S. R. R. J. S. R. Thomson, note for costs.

"Filed July 23, 1887.

"F. M. TRIMMIER, Clerk."

At the same time a receipt, of which the following is a copy, was also exhibited, viz.

"Mrs. Bomar Received of J. S. R. Thomson one hundred and thirty dollars,

vs. R. R. deposit fee in this case, in place of bond of costs in this

case.

"23rd July, 1887.

"F. M. TRIMMIER, Clerk."

It also appeared from the affidavits submitted, which are set out in the case, that, before the note and receipt above copied were given, it had been determined by the clerk, with the acquiescence of all parties, that the sum of one hundred and thirty dollars would be a sufficient amount to be deposited as security for the costs; but it was admitted that defendant's counsel knew nothing of the alleged private arrangement between the clerk and one of the counsel for plaintiffs whereby the note and receipt above mentioned were given. It is stated in the affidavit of Mr. Thomson that, on the day the note was given, he said to the clerk "that he was ready and willing to make the deposit in behalf of the plaintiffs, but that, as a matter of convenience to himself, if the clerk was willing, he would give his individual obligation to Mr. Trimmier, individually, for the amount, and Mr. Trimmier, as clerk, give Mr. Thomson his receipt for the said sum as deposited with him. It was distinctly mentioned that it amounted to a loan of that amount by Mr. Trimmier individually to Mr. Thomson, and that on demand, if Mr. Trimmier wished it, Mr. Thomson would pay off said note; and that if not demanded before close of suit, and if plaintiff should gain the case, the note should be returned to Mr. Thomson if not previously paid, and the receipt returned to Mr. Trimmier." It is further stated in this affidavit that "in giving this obligation Mr. Thomson drew it up without any reference to Mr. Trimmier being clerk of the court. Mr. Trimmier said that he would take it as an obligation to himself individually, but preferred, for his own convenience and recollection, to have some reference in it to the matter for which it was given; and at his request, after the due-bill was written and signed by Mr. Thomson, the word 'clerk' was interlined, Mr. Thomson's signature stricken out, the words from 'the same' to 'for costs,' inclusive, added, and the due-bill again signed by Mr. Thomson," as we have attempted to indicate in the copy hereinbefore set out. From the affidavit of T. R. Trimmier it appears that, when he took charge of the clerk's office, the note above referred to was "found filed with the undertakings for security for costs." In the affidavit of Mr. Sanders, one of the counsel for defendant, it is stated that when he learned that Mr. Thomson had given his note to F. M. Trimmier, clerk, as security for the costs of this case, he "immediately called the clerk's attention to this fact, and asked him if he regarded himself in any way as being responsible for the costs in this case, to which he replied that he did not; that he would file a piece of brown paper as his security for costs, if the plaintiff's attorney were to bring it, and request that it be so filed."

Judge KERSHAW held that the papers submitted to him the order of Judge ALDRICH, the note, with its indorsement, and the receipt of the clerk did not show a proper compliance with the order requiring security for costs, and in his remarks settling the case he says: "I paid very little attention to the statement of facts made, because I did not consider any personal contract between Mr. Thomson and Mr. Trimmier as capable of rendering such a transaction a compliance with said order." He therefore granted an order of nonsuit as asked for, and, upon the entry of judgment in accordance therewith, the plaintiffs gave notice of appeal from "said orders, rulings, and judgments" upon the several grounds set out in the record. These grounds raise substantially but three questions: (1) Whether there was error in granting the order requiring security for costs; (2) whether the order so requiring such security was properly complied with; (3) whether the plaintiffs should not still be allowed to give security for costs, if such security had not been properly given.

The first question involves the proposition that the rule of court, and the statute upon which it is based, are in conflict with the constitution of this state, as well as that of the United States. It seems to us that the plaintiffs are not in a position to make such a question. The proper time to raise it was when the original application was made to Judge ALDRICH for the order requiring the plaintiffs to enter security for costs upon the ground that they were non-residents of this state. But the question was not then raised, and, on the contrary, no objection on any ground was then interposed to the granting of the order, and after it was granted no exception was noted in the proper time. Nor does it appear that any such point was presented to Judge KERSHAW when the application was made for the final order. If the point had been then raised, Judge KERSHAW would have been entirely justified in declining to review and reverse an order of his predecessor upon the ground of error of law therein. Until it was reversed by the proper authority he was bound to regard it as a valid order, and the only question which was before him, or could properly come before him, was whether its requirements had been complied with. See McCollum v. Massey, 2 Bailey, 606. As we have said, there was no exception taken to the order of Judge ALDRICH at the proper time, and there is now no notice...