Kittle v. Yazoo & M.V.R. Co.

• Decision Date: 23 March 1908
• Docket Number: 13,257
• Citation: 92 Miss. 381,45 So. 867
• Parties: GEORGE B. KITTLE v. YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY
• Court: Mississippi Supreme Court

45 So. 867

92 Miss. 381

GEORGE B. KITTLE v. YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY

No. 13,257

Supreme Court of Mississippi

March 23, 1908

FROM the circuit court of Washington county, HON. SYDNEY M. SMITH Judge.

Kittle appellant, was the plaintiff in the court below, and the railroad company, appellee, defendant there. From a judgment in defendant's favor plaintiff appealed to the supreme court.

Kittle recovered a judgment against the railroad company before a justice of the peace and the railroad company appealed to the circuit court. Thereafter the clerk of the circuit court acting for himself in his own right and independently of the litigants, made a motion, supported by affidavit, under Code 1906, § 940, for costs; and at the following term of court, in June, 1907, an order was made by the court requiring the plaintiff to give security for costs within sixty days. Security was not given, by plaintiff within the sixty days. After the expiration thereof, but before the convening of the next term of the court, the attorney who brought the suit was killed, and plaintiff employed other counsel, who in November, 1907, twenty days before the December, 1907, term of the court, tendered the necessary bond for costs to the clerk of the court and the same was accepted and filed. Several days after the court convened the defendant railroad company made a motion to dismiss the cause because of plaintiff's failure to give security for costs within sixty days from the date of the order. The court below sustained the motion, holding that sufficient cause for plaintiff's failure to file bond within the sixty days had not been shown.

Reversed and remanded.

Campbell & Cashin, for appellant.

An examination of Code 1906, § 940, will show that its purpose is simply to secure the payment of officers' fees and costs which might be adjudged to the defendant in case the plaintiff should fail to obtain judgment. The object of the statute had been fully attained by the giving of security for costs twenty days before the first day of the term of court. Kyle v. Stinson, 13 Smed. & M., 301.

While it is true that permission to a party to give security for costs after the expiration of the sixty days from date of order is within the discretion of the court, and while it is true that the cost bond in this case was filed without plaintiff's first having obtained permission of the court therefor, yet such permission could not have been obtained at the time the bond was filed inasmuch as court was not then in session. The statute makes no provision for obtaining the permission of the judge in vacation for the filing of security for costs.

The discretion which is vested in the court does not mean an unjust and arbitrary use of judicial power simply for the purpose of giving advantage to one party to a suit without any corresponding benefit to the other party thereto; but it does mean such discretion as the parties have a right to require to be exercised with due reference to sound reason and the usage of courts.

Appellee has been in no way prejudiced by appellant's failure to file the cost bond within the sixty days' period.

The undoubted weight of authority is that the penalty of dismissal should not be visited upon a plaintiff merely for his failure to file security within the designated time. It has been held by some authorities that security offered at any time before dismissal should be received. It has been also held that security tendered before motion to dismiss although after the expiration of the time allowed, should be received, or that security may be given at any time before trial. 11 Cyc., 185, 186.

Mayes & Longstreet, for appellee.

Whether a cause should be dismissed because of the plaintiff's failure to give security for costs within the statutory period fixed by Code 1906, § 940, is a matter largely within the discretion of the court at the succeeding term and if, at that term, the delinquent party makes a showing to the court excusing himself reasonably on account of the failure to execute the same, it is within the court's discretion to permit him, even at the succeeding term, to file the bond if he can...