McCarley v. Turner

Citations

• 33 S.C. 161
• 11 S.E. 645
• 1890 S.C. LEXIS 114

Syllabus

<p>1. Under order requiring security for costs to be filed by a day stated, and in default thereof that plaintiff be non-suited, she filed such security within the time limited, which was approved by the clerk of court and filed, but the signature of the surety was not witnessed by the clerk. At the call of the cause for trial, more than two years after the expiration of the time limited, defendants claimed that there had not been a compliance with the order. Held, that the security filed was not in conformity to law, and was, therefore, insufficient, and that the order for non-suit had become operative.</p> <p>2. Defendants did not waive their right to insist upon the judgment of non-suit by joining in acts intended to prepare the cause for trial, after the order of non-suit had become operative, but in ignorance thereof, because of erroneous information imparted by the clerk of court.</p> <p>Mr. Justice McGowan, dissenting.</p>