Heinekamp v. Beaty
| Decision Date | 17 June 1891 |
| Citation | 22 A. 67,74 Md. 388 |
| Parties | HEINEKAMP ET AL. v. BEATY ET UX. |
| Court | Maryland Court of Appeals |
For majority opinion, see 21 A. 1098.
We regret our inability to concur with the majority of the court in remanding this case for a new trial. We agree with them in thinking an error was committed in laying down the rule for the measure of damages in the case, and that the rule for the admeasurement of damages in a case of trover, which this is has been correctly stated in the decision of Judge BRYAN speaking for the majority of the court. We are of opinion however, that the judgment should be reversed without allowing a new trial, because of the error, as we regard it of the court in refusing a nonsuit for non-compliance with the rule security for costs, when motion was made therefor. This rule was asked for and laid on the 23d of September, 1889. Section 9 of article 24 of the Code of Pub. Gen. Laws provides that, when such rule is laid, "the plaintiff shall have until the second day of the next term to comply therewith, and at his failure to do so he shall be nonsuited." When the rule was laid, the plaintiff, by the statute, had till the second day of next term to comply with it, and no longer. When the January term came, and the rule was not complied with, the defendants were entitled to have the plaintiffs nonsuited upon motion therefor. At that term no motion was made for nonsuit. It was not made till September term, 1890. We were told at the hearing that mean-while the case went on the stet. docket; but the record does not show this, and it does not show that the case was regularly continued and was so brought forward. It does not appear that defendants ever assented to a continuance, so as to work a waiver of their rights under it, as was ruled in Wilson v. McCarty, 60 Md. 375, had been done in that case by consent given at a term subsequent to the expiration of the rule. The appellant had waived nothing. He had simply delayed making this motion for non pros.
It has been contended that, being a statute of indemnity, it was perfectly competent for the court to extend the rule, or accept deposit of costs, at any time before trial actually had. This, it is said, has been the practice in Baltimore and elsewhere in the state. It has certainly not been universal. It has never been the practice or construction of the statute in the circuits which we represent. In our opinion it ought not to be the practice, for it is directly contrary to the statute. And we do not think that the McCarty Case justifies anything beyond acceptance of compliance at the moment motion is made for non pros., and even that we think unwarranted by the statute. It certainly gives no countenance to an enlargement of the rule. Here acceptance of deposit was secured several days after the motion for judgment for non-compliance. It is a statute of indemnity, but that indemnity is to be furnished by a time fixed by the statute which no power is given to the court to enlarge. That rule may be waived by the party defendant, and a new rule may be laid on his motion, but his right under the statute is fixed and certain. It says the plaintniff "shall be nonsuited" for non-compliance by the time set. It is peremptory, and the court has no right against the will of the defendant to deny him his motion for nonsuit. In Morse v. Rankin, 51 Conn. 327, the lower court allowed the plaintiff to give bond before trial, and proceeded to hear the case. The appellate court reversed the judgment, and said the statute which provided that, when the writ was sued out, the party, being a non-resident, should give bond for costs, was...
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