Swainson v. Bishop

• Decision Date: 31 March 1873
• Citation: 52 Mo. 227
• Parties: JOHN SWAINSON, et al., Respondents v. DAVID H. BISHOP, Appellant.
• Court: Missouri Supreme Court

52 Mo. 227

JOHN SWAINSON, et al., Respondents

v.DAVID H. BISHOP, Appellant.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

Slayback & Haeussler C. and O. Bishop, for Appellant.

The bond for costs may be filed in vacation, and has been even ordered to be filed in vacation. (Brown vs. Ravenscroft, 1 Mo., 397.)

M. Kinealy and R. S. MacDonald, for Respondents.

Both at Common Law and under the Code the days for filing motions for new trial or in arrest of judgment are judicial or sitting days of court. (National Bank of &c., vs. Williams, 46 Mo., 18; Wash vs. Randolph, 9 Mo., 142; Hale vs. Owen, 2 Salk., 625; Long vs. Hughes, 1 Duvall, (Ky.) 387.) And this court has declared that this is the rule in all cases in which papers have to be filed or in which the act is to be performed in court. (Wash vs Randoph, 9 Mo., 145.)

ADAMS, Judge, delivered the opinion of the court.

This was an action for false imprisonment brought to the June Term, 1871 of the St. Louis Circuit Court.

The defendant filed a motion to rule the plaintiffs to security for costs on the ground that they were insolvent and unable to pay them. This motion, by consent of parties, was sustained on the 30th day of June, 1871, and the court made an order requiring security to be given in thirty days.

On the 4th of December, 1871, the court on motion of defendant dismissed the cause for the reason that the plaintiffs had failed to file security for costs, and the plaintiffs thereupon filed a motion to set aside the judgment of dismissal upon the alleged ground that the thirty days time given to file security had not elapsed; this motion was overruled and the plaintiffs appealed to general term where the judgment at special term was reversed, and from this judgment of reversal the defendant has appealed to this court.

The only point raised and discussed here is, that the thirty days time given to file security for costs, meant days in term whilst the court was in actual session, and that as a term of the court had lapsed, the thirty days allowed by the rule had not expired when the cause was dismissed.

The second section of the act concerning costs (W. S., 342,) in my judgment does not admit of this construction. The first section in regard to actions by non-residents, &c., requires security for costs to be filed with the clerk before the institution of the suit. The second section simply requires the undertaking to be filed without specifying how it shall be filed,...