Henning v. Western Union Telegraph Co.

• Decision Date: 19 December 1889
• Citation: 40 F. 658
• Parties: HENNING v. WESTERN UNION TEL. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

40 F. 658

HENNING v. WESTERN UNION TEL. CO.

United States Circuit Court, D. South Carolina.

December 19, 1889

Buist &amp Buist and John Wingate, for plaintiff.

Barker Gilliland & Fitzsimons, for defendant.

SIMONTON J.

This case was originally brought in the state court. It was removed into this court, plaintiff being a resident of the state of South Carolina, and the defendant being a foreign corporation. After its removal the plaintiff obtained leave to amend his complaint by inserting the appointment and the name of his guardian ad litem, and defendant had leave to answer the complaint when so amended. Thereupon defendant under our seventy-fifth rule, served notice for security for costs. The plaintiff resists this motion, because he is a resident of the state of South Carolina, and as such not liable to security for costs in the state court, and therefore not so liable in this court, into which the case comes precisely in the same plight in which it left the state court. Duncan v. Gegan, 101 U.S. 812. This seems to be a new question. It must be decided under our own rule which controls our practice. Rule 75 is in these words:

'In no case shall the defendant be compelled to plead or answer until the plaintiff shall have given security for costs, if notice be given to the plaintiff's attorney that such security will be required. The amount of such security, not exceeding fifty dollars, shall be fixed by the clerk. On application made to a judge on a rules-day, or to the court in term, such further security may be ordered as may be deemed necessary.'

The rule is without qualification,-- 'in no case.' Is it affected by the fact that before the case came into this court the plaintiff was under no obligation whatever to give security for costs? The act of congress regulating the removal of causes provides that, when removed, 'the cause shall then proceed in the same manner as if it had been originally commenced in said circuit court.' 25 St. at Large, 435. If the cause proceeds as if it began in this court, it is, of course, subject to the rules of the court governing causes begun therein, just as if the cause originally began here. Clare v. Bank, 14 Blatchf. 445. Besides this, the complaint has been amended in this court. The cause will be tried and decided upon the amended complaint, (Code S.C. 167;) that is to say, upon pleadings made up in this court, and governed by its rules only. The...