Cummings v. Wingo

• Decision Date: 19 October 1889
• Parties: CUMMINGS v. WINGO et al.
• Court: South Carolina Supreme Court

10 S.E. 107

31 S.C. 427

CUMMINGS v. WINGO et al.

Supreme Court of South Carolina

October 19, 1889

Appeal from common pleas circuit court of Spartanburg county: J. J NORTON, Judge.

Action by Anson W. Cummings against William J. Wingo and W. T Robertson on a promissory note. Plaintiff appeals from an order of nonsuit and an order refusing to set aside the same.

E. E Bomar and Bomar & Simpson, for appellant.

Duncan & Sanders, for respondent Wingo.

McIVER J.

This is an appeal from an order of nonsuit for failure to give security for costs, within the time prescribed by a former order, and from an order refusing to set aside such order of nonsuit, made at the same term. There is but little dispute as to the facts, and as we do not think that the appeal can be sustained, even under the facts as they are claimed to be by the appellant, we shall assume, for the purposes of this case, that the statement made by appellant is correct. The facts as thus stated, so far as pertinent to the questions made by the appeal, are substantially as follows: On the 28th of March, 1887, during the first term at which the cause was at issue, Judge ALDRICH granted an order, on motion of counsel for respondent, Wingo, in these words: "It appearing to the satisfaction of this court that the plaintiff is not a resident of this state, *** it is ordered that the plaintiff herein furnish security for the costs of this action by the first day of the next term of this court, or be nonsuited." This order, so far as appears in the record, was granted without objection, and to it no exception seems to have been taken, and no notice of appeal from it. A few days before the first day of the next term of the court, which, it appears, commenced on the 29th of July, 1887, the plaintiff's counsel, for the purpose of complying with the order, placed in the clerk's office an undertaking in the form prescribed by the rule of court, signed by the plaintiff and one Alfred Tolleson, and witnessed by the plaintiff's counsel, but the clerk of the court did not "witness the signature of the surety," nor did he approve the sufficiency of the security, or mark the paper filed, until the 1st day of August, 1887, after the expiration of the first day of the term. When the case was called for trial at the next succeeding term Judge NORTON, on the 28th of October, 1887, granted an order of nonsuit upon the ground that the order of Judge ALDRICH had not been complied with within the prescribed time. During the same term the plaintiff, on notice, moved before the same presiding judge for an order setting aside the order of nonsuit, and granting a new hearing on the "motion therefor; and further allowing plaintiff to have said cause continued on the docket for trial without security for costs, or, if not, to ask the judgment of said presiding judge that security for costs heretofore filed was and is in substantial compliance with the statute and rule of court requiring same, or, if not, for an order allowing plaintiff to file proper security nunc pro tunc, or to supply any omission there may have been in filing security heretofore." This motion was heard by his honor Judge NORTON, upon the affidavits submitted, which are all set out in the "case," and on the 10th of November, 1887, he signed an order dismissing the motion. From this order, as well as the previous order of Judge NORTON granting the nonsuit, the plaintiff appeals, substantially, upon the following grounds: (1) Because the security as originally furnished was sufficiently in compliance with the law; (2) because the requirements that the clerk should witness the signature of the surety, and approve the sufficiency of the security, were directory merely; (3) because, if such requirements were mandatory, the omission of them by the clerk should be subsequently supplied; (4) because, under section 197 of the Code, the judge should have disregarded the defects in the undertaking as originally furnished; (5) because the judge erred in holding that he had no power to grant plaintiff's motion, it not being in his discretion to do so; (6) because the statute and rule of court, requiring a non-resident to give security for the costs of an action commenced by him, are in violation of section 2, art. 4, of the constitution of the United States.

It seems to us that this case is so nearly identical, in principle, with our recent decision in Bomar v. Railroad Co., 9 S.E. Rep. 512, of the advance sheets of that very valuable publication, that we might content ourselves with a simple reference to that case as conclusive of this; but, in deference to the zeal and earnestness with which this appeal has been pressed by the counsel for appellant, we have determined to consider again the questions involved. The ground of appeal in this case raise these questions: First. Whether the security for costs, as originally furnished, was a sufficient compliance with the law. Second. If not, whether the defects therein could not be supplied subsequent to the time prescribed by the order of Judge ALDRICH. Third. Whether the circuit judge, under the provisions of section 197 of the Code, did not have the discretion to disregard the defects in furnishing the required security. Fourth. Whether the statute and rule of court, providing for the requirement of security for costs from a non-resident plaintiff, are in conflict with the constitution of the United States.

1. As to the first question it will be seen from an examination of the reports of this state that so many controversies had arisen in reference to the property mode of complying with an order requiring security for costs that the court of appeals as far back as 1834, in the case of Boyd v. Graham, 2 Hill, (S. C.) 558, found it necessary to prescribed a positive rule on the subject, and to declare that no other entry should be regarded as a compliance with such an order. The rule thus prescribed was incorporated in the rules of court, adopted in 1837 as rule 74, (Miller, Comp. 44), with the provision that the plaintiff might comply with an order for security for costs by depositing a sufficient sum of money with the clerk. Then the act of 1839 was passed, the terms of which are substantially incorporated in the General Statutes as section 743, which reads as follows: "Whenever security for costs may be ordered to be given, or may be tendered by any plaintiff, in vacation or in term-time, the clerk aforesaid [referring to the clerk of the court of common pleas] shall witness the signature of the surety, and shall, in the first instance, judge of the sufficiency of the security, the form of the undertaking to be according to law, or the rule of court on that subject, if there be no law." Then we have as rule 10 of the circuit court rules now of force the same provisions as those contained in rule 74 of the old court. It thus appears that both the legislature and the courts have deemed it necessary to prescribe a positive rule as to the manner in which security for costs shall be given, the statute expressly requiring that the clerk "shall witness the signature of the surety, and shall, in the first instance, judge of the sufficiency of the security," leaving the form of the undertaking to be prescribed by a rule of court until the legislature sees fit to prescribe such form, which they have not yet done. From this review of the law upon the subject we do not see by what authority this court can undertake to dispense with any of the requirements thus positively exacted, manifestly for the purpose of avoiding just such controversies as the present. But if there could be any doubt upon the subject that doubt is effectually dispelled by the decision of the former court of appeals in the case of Willis v. Potter, 9 Rich. Law, 411, the authority of which has been distinctly recognized by the present court in the case of Bomar v. Railroad Co., supra. In that case, as in this, the undertaking for costs had been witnessed by the attorney for plaintiff, but not by the clerk, and this was held to be no compliance, not even a substantial compliance, with the order requiring security for costs, and the order of nonsuit was affirmed. In that case, MUNRO, J., in delivering the opinion of the court, after adverting to the provision of the statute requiring that the clerk shall witness the signature of the surety, and shall, in the first instance, judge of the sufficiency of the security, and to the declaration of the rule of the court that no other form than that prescribed shall be deemed sufficient, said "there is not the slightest pretense for saying that the entry of security for costs in this case was 'a substantial compliance with the law"' adding, "that unless an order requiring a party to enter security for costs be strictly complied with...