Bomar v. Railroad Co.

Citations

• 30 S.C. 450
• 9 S.E. 512
• 1889 S.C. LEXIS 122

Syllabus

<p>1. A notice of appeal from a final judgment liberally construed as intended to include a notice of appeal from an intermediate order in the cause.</p> <p>2. An order requiring security for costs to be filed by a day stated, or, in default thereof, that plaintiff be non-suited, cannot be reviewed and reversed by a succeeding Circuit Judge.</p> <p>3. No objection being raised to an order requiring non-resident plaintiffs to file security for the costs of the action, it is too late on appeal to make the point that this long acquiesced in rule is unconstitutional.</p> <p>4. An order having been passed requiring plaintiffs to file security for costs by a given day or be non-suited, it was agreed that a deposit of 8130 would be sufficient security. Thereupon plaintiffs1 attorney gave to the clerk of court his due bill for $130, payable on demand, “the same being given him in this case for his receipt to me for deposit for security for costs,” and the clerk at the same time gave to plaintiffs’ attorney a receipt for $130 “deposit fee in this case in place of bond of costs in this case but, in fact, no money passed. Held, that there was not a compliance with the order requiring security, for there was not an undertaking in the prescribed form, nor a deposit of any sum of money.</p> <p>5. Parol evidence was admissible in this case to explain and contradict the clerk’s receipt, but not the attorney’s due bill.</p> <p>6. A succeeding Circuit Judge did not err in failing to extend the time for plaintiffs to file security, (1) because he was not asked to; (2) because the order was final, and could not be reviewed or modified by a succeeding Circuit Judge. Section 195 of the Code does not apply.</p> <p>7. The first order became final on the expiration of the time limited without compliance, but the practice is approved of taking a second order adjudging such non-compliance, and declaring the non-suit to have taken effect.</p>