Ripley v. Morris
| Decision Date | 31 December 1845 |
| Parties | CALVIN RIPLEYv.BUCKNER S. MORRIS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
IN this case, a motion was made to dismiss the writ of error, because no bond for costs had been filed. The motion was based upon the affidavit of the defendant in error, stating that the plaintiff in error was, when the writ was sued out, and still is, a nonresident.
The counsel for the plaintiff in error admitted the fact of non-residence, and entered a cross motion for leave to file a bond for costs. The application was resisted by the defendant in error.
J. B. THOMAS, for the defendant in error.
This proceeding is an action within the meaning of the first section of the “ (R. L. 165, 6,) the term then and there being, “and in all cases in law or equity;” and that law intends to prohibit the institution and prosecution of any suit by a non-resident, in a circuit court or the Supreme court of this State.
It embraces two classes of cases: 1. When a plaintiff, being a non-resident, sues; 2. When a resident sues, and afterwards becomes non-resident.
In the first case, the bond must be filed before the suit is commenced, and in default thereof, the suit mnst be dismissed. In the other the bond must not be filed until the plaintiff has become non-resident. The first part goes to the plaintiff's disability to commence, and the other, to prosecute without the requisite security for costs.
The requisition to give bond is co-existent and contemporaneous with the fact of non-residence, but not prior thereto. Hence, the action of the court in the premises must have reference to the date of plaintiff's disability. If it existed when he commenced his suit, the court can not invest him with a right not existing at that time, and must dismiss his suit; but a disability commencing after institution of the suit may not carry with it any retrospective prejudice to the plaintiff, if he will do by the rule of the court, what, if his disability had existed before he commenced his suit, he would have been required by law to do.
The plaintiff in error, by asking leave to file his bond, acknowledges the obligation resting on him by law to do so. This is the only law imposing such obligation, and, therefore, this case is conceded to come within its provisions.
But to deny the construction contended for by defendant in error, would render inoperative the requisitions of the law, that bonds be filed in the...
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Turner v. Edmonston
... ... [ Macklin v ... Allenberg, 100 Mo. 337, 13 S.W. 350. See, also, 2 ... Tidd's Prac. (3 Am. Ed.), p. 1141; Ripley v ... Morris, 7 Ill. 381; Allen, Ball & Co. v. Mayor, ... etc., 9 Ga. 286; Robinson v. Magarity, 28 Ill ... 423; Eldridge v. Walker, 80 ... ...
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Pierce v. Stinde
...suit of Stinde v. Behrens and wife was not pending after the expiration of the June term, because a writ of error is a new suit.-- Ripley v. Moriss, 7 Ill. 381; Allen v. Mayor, 9 Ga. 286; Gregg v. Berthea, 6 Port. 9; McJilton v. Love, 13 Ill. 486, 494; Robinson v. Magarity, 28 Ill. 423, 426......
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Turner v. Edmonston
...it is regarded in this state. Macklin v. Allenberg, 100 Mo. 337, 13 S. W. 350. See, also, 2 Tidd's Prac. (3d Am. Ed.) p. 1141; Ripley v. Morris, 7 Ill. 381; Allen v. Mayor, 9 Ga. 286; Robinson v. Magarity, 28 Ill. 426; Eldridge v. Walker, 80 Ill. 270; International Bank v. Jenkins, 104 Ill.......
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Petrauskas v. Kipnis
...considered to be the commencement of a new action. (Roberts v. Fahs (1863), 32 Ill. 474; Hickman v. Haines (1848), 10 Ill. 20; Ripley v. Morris (1845), 7 Ill. 381.) This rule was changed, so that today an appeal is considered to be a continuation of the proceedings in the circuit court. (Su......