Cummings v. Wingo

Citations

• 31 S.C. 427
• 10 S.E. 107
• 1889 S.C. LEXIS 57

Syllabus

<p>1. An order of court required plaintiff to file security for costs by the first day of the next term of court, or be non-suited. An undertaking for costs signed by plaintiff and a surety, witnessed by plaintiff’s attorney, was left with the clerk of court before the day named, but the signature of the surety was not witnessed by the clerk nor the sufficiency of the security approved by him, as required by law, until after the day limited. Held, that the signature not having been witnessed nor the security approved within the time limited, there was not such a compliance with the order as the law requires, and therefore the non-suit became operative.</p> <p>2. This order of court was such a final order as authorized the entry of judgment, and therefore a judge at a succeeding term could not rescind or modify it, or relieve the plaintiff from the consequences of his omission to comply within the prescribed time. McMillan v. McCall, 2 S. C., 390, disapproved.</p> <p>3. A seems that defendant did not waive his right to enter judgment of non-suit by joining plaintiff in taking the testimony of a witness before the order of non-suit was granted, or in filing cross-interrogatories under protest, after the time limited by the order had expired.</p> <p>4. The statute and rule of court permitting security for costs to be required from non-residents do not conflict with the provision in the Constitution of the United States (art. IV., § 2), which declares that “the citizens of each State shall be entitled to all privileges and immunities of the citizens in the several Statesfor in this matter the discrimination is not against citizens of other States, but only against non-residents.</p> <p>5. The order of court requiring security for costs not having been excepted to or appealed from, the question of constitutionality is considered only ex gratia.</p>