Papineau v. Belgarde
| Decision Date | 31 January 1876 |
| Citation | 81 Ill. 61,1876 WL 9914 |
| Parties | PETER PAPINEAUv.MAXIME BELGARDE. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Ford county; the Hon. THOMAS F. TIPTON, Judge, presiding.
Mr. CALVIN H. FREW, for the appellant.
Messrs. POLLOCK & SAMPLE, for the appellee. Mr. JUSTICE WALKER delivered the opinion of the Court:
The defendant filed an affidavit in the court below, and entered a motion that plaintiff be ruled to give security for costs, because of his insolvency. The court entered a rule to show cause by a specified day, and on that day set aside the order. This action of the court is assigned for error.
The first section of the Cost Act of 1844 requires the suit to be dismissed in cases where it provides a bond shall be given if its requirements are not observed. The language is peremptory, and yet it has been held, under that section, the motion to dismiss must be made before a demurrer or plea in bar shall be filed.
But the second section provides, that in case the court shall be satisfied that the plaintiff is unable to pay the costs of suit, or that he is so unsettled as to endanger the officers in their legal demands, the court shall rule the plaintiff to give security for costs of suit, and on a failure to comply with the rule, it requires the suit to be dismissed.
This language implies discretion. It requires evidence that satisfies the court, and until so satisfied the court should not make a rule for security. The previous decisions of this court hold, that, under this provision, it is discretionary. See Gesford v. Critzer, 2 Gilm. 698, and Selby v. Hutchinson, 4 Gilm. 319, where it is held that error can not be assigned on the decision of such a motion. This has been understood, it is believed, to be the settled practice since those decisions were made. Nor does the fact that the rule was entered and set aside at all change the rule. All know that the records of the court are under the control of the court during the term at which they were entered. If, for any cause, the court becomes satisfied that the rule was improperly made, it had ample power to set it aside, and such action would not, for that reason alone, be subject to review in this court. Hence, there is no force in this objection.
It is next insisted, that the verdict is manifestly against the evidence. We have examined it with careful attention, and considered it maturely, and must say that we think it sustains the verdict. Had appellee's evidence been alone considered, no one would say they had any doubt of the correctness of the finding; and when appellant's evidence is considered, at most it but creates a doubt of the correctness of the conclusion reached by the jury. The evidence all considered, it is not clear and certain the verdict is right, but, at the same time, it does not impress the mind that it is...
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