Cook v. Beasley
| Decision Date | 31 December 1846 |
| Citation | 1 Tex. 591 |
| Parties | JOHN B. COOK v. CHARLES BEASLEY |
| Court | Texas Supreme Court |
Error from Robertson County.
The refusal to receive security for costs, tendered before the cause is finally dismissed upon a previous motion for such security, is error. [ Ante, 523; 2 Tex. 162, 501.]
The plaintiff brought suit against the defendant to the spring term, 1845, of the district court. At that term an interlocutory judgment by default was taken, after which the judgment by default was set aside and it was ordered that the plaintiff give security for costs in sixty days or the cause be dismissed and that the cause stand continued until the next term of the court.
At the fall term next thereafter, Barry Gillespie, Esq., one of the attorneys for the plaintiff, moved the court for permission to give security for costs in obedience to the order of the former term, and showed cause supported by his affidavit why the same had not been given within the time prescribed by the order of the court, alleging that the plaintiff was a non-resident, that he had engaged one J. L. Farquahar, a person of sufficient ability, to become security for costs in said cause; that he afterwards understood he had become such security, and that he “now for the first time learns that it was either not entered or not given.” He tendered a bond to which no objection appears to have been made, and prayed that the suit should not be dismissed.
There is also in the record the affidavit of the defendant's attorney, from which it appears that he apprised one of the attorneys of the plaintiff of the rule for security for costs at the term when it was entered. It also appears that a dismissal of the cause would bring it within the operation of the statute of limitations, by which the plaintiff's demand would be barred.
The court refused to permit the plaintiff to file a bond to secure the payment of costs and made the order peremptory, dismissing the cause.
Gillespie, for plaintiff in error.
White, contra.
No briefs.
Mr. Justice Lipscomb, having been of counsel for the plaintiff in the court below, did not sit in the cause.
The only question presented is, whether there was error in dismissing the cause when ample security was tendered and good cause shown why it had not been given within the time prescribed. And we cannot entertain a doubt that there was error in this ruling.
The statute under which the rule was entered (1 vol. Laws, 203, sec. 17) was examined in reference to its...
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Hoover v. Barker
...is without merit as it has long been the view that security for costs may be given at any time before the cause is dismissed. Cook v. Beasley, 1 Tex. 591 (1846), Hays v. Cage, 2 Tex. 501 Prior to trial, appellant filed a motion for summary judgment. By his fourth point of error appellant co......
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Missouri Pac. Ry. Co. v. Richmond
...although a cost-bond may not have been filed within the time prescribed, if tendered before the case was actually dismissed. Cook v. Beasely, 1 Tex. 591; Rhodes v. Phillips, 2 Tex. 161; Hays v. Cage, Id. 504. The affidavit supplied the place of a An exception to the petition was overruled, ......
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Posey v. Aiken
...Railway v. Richmond, 73 Tex. 572, 11 S. W. 555; Cook v. Ross, 46 Tex. 263; Rhodes v. Phillips, 2 Tex. 163; Hays v. Cage, Id. 504; Cook v. Beasley, 1 Tex. 591. We therefore order that the judgment dismissing this cause be reversed, and the cause ...