Clair v. Philadelphia Storage Battery Co., 19928.
| Decision Date | 10 August 1939 |
| Docket Number | No. 19928.,19928. |
| Citation | 29 F. Supp. 299 |
| Parties | CLAIR v. PHILADELPHIA STORAGE BATTERY CO. |
| Court | U.S. District Court — Western District of Pennsylvania |
Harold H. Bowman, of New York City, and Alfred T. Steinmetz, of Philadelphia, Pa., for plaintiff.
Wm. Barclay Lex, Charles J. Hepburn, Hepburn & Norris, Charles H. Howson, and Howson & Howson, all of Philadelphia, Pa., for defendant.
Leave was given to submit supplemental Briefs, which have now been submitted.
Every litigant assumes an obligation to pay the costs which may be awarded against him. He is however not required to give bond to pay them unless so required by Statute or Rule of Court. A Rule of this Court required such a bond to be given by non-resident plaintiffs. This Rule was in force when this action was instituted, and as the plaintiff is a non-resident, she was subject to it. The Rule was however not invoked until the present motion. The new Rules of Civil Procedure became effective September 16th, 1938, 28 U.S.C.A. following section 723c. By Rule 1 they "govern the procedure" in the District Courts but by Rule 83 the District Courts may make Rules of their own not inconsistent with the Civil Procedure Rules. This Court has however adopted no such Rules and the new Rules are silent on the subject except Rule 41, Section (d), which applies only to second suits for the same cause of action.
We construe Rule 83 to mean that any Rules of the District Court, not inconsistent with the Rules of Civil Procedure, remain in force. Our Rule 9, Section 1, of the Rules adopted in 1903 is in this respect not inconsistent with the Civil Procedure Rule and remains in force. The question thus becomes of the effect upon the defendant's right to security for costs of its failure to invoke the Rule until after a two years delay and issue joined. There is no uniform practice, there being supporting precedents for requiring or refusing security for costs after a corresponding delay.
Counsel for defendant seems to admit that mere non-residence cannot be urged as a reason for requiring security for costs after undue delay in invoking the Rule. They plant the allowance of the Rule not upon mere non-residence but upon what they assert to be the admission of the plaintiff that she is financially unable to pay costs. The Rule, it is true, expands the basis for the requirement of security from that of mere non-residence to all cases in which the plaintiff is found to be unable to pay costs. The consequence of a...
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Hallstrom Development Co. v. Lee
...66, 362 A.2d 1098 (1976). Every litigant assumes an obligation to pay costs which may be awarded against him. Clair v. Philadelphia Storage Battery Co., 29 F.Supp. 299 (1939). However, the wives of appellees contend that as non-litigants in the equity matter, they have assumed no "obligatio......
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Gillson v. Vendome Petroleum Corporation, 401 Civil.
...been interpreted as continuing in force all pre-existing local rules, until new local rules are adopted. Clair v. Philadelphia Storage Battery Company, D.C.E.D.Pa. 1939, 29 F.Supp. 299; Wheeler v. Lientz et al., D.C.W.D.Mo. 1939, 25 F.Supp. The old Rule 31 of this Court, which has been repr......
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Marder v. Food Fair Stores, Civ. A. No. 20330.
...waived their rights because of their failure to move for the security within a reasonable time. In Clair v. Philadelphia Storage Battery Co., D.C.E.D.Pa.1939, 29 F. Supp. 299, 300, in discharging the rule on the basis that plaintiff had not admitted her inability to pay costs, the Court "Th......
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Fontenot v. Cabot Carbon Co.
...of the United States may make their own rules so long as they are not inconsistent with the federal rules. See Clair v. Philadelphia Storage Battery Co., D.C., 29 F.Supp. 299. The district court rules adopted on November 29, 1920, apply in the instant case; Rule 12 thereof: "The practice, p......