Summary
In Bond v. Hattiesburg American, 178 Miss. 122, 172 So. 509, 510, it was held that the statute providing that a suit shall be dismissed if security for costs is not given within sixty days after court order requiring security does not contemplate that action shall stand dismissed at expiration of sixty-day period, since rule for security for costs may be complied with after the expiration of the time fixed if defendant in the action has not been prejudiced by delay.
Summary of this case from Jackson County v. MeautOpinion
No. 32602.
February 22, 1937. Suggestion of Error Overruled March 22, 1937.
1. COSTS.
Statute providing that suit shall be dismissed if security for costs is not given within sixty days after court order requiring security does not contemplate that action shall stand dismissed at expiration of sixty-day period, since rule for security for costs may be complied with after expiration of time fixed if defendant in action has not been prejudiced by delay (Code 1930, sec. 656).
2. COSTS.
Provision in rule for security for costs that, in event plaintiff failed to comply with order for costs within sixty days, cause would stand dismissed without further order of court, held ineffective (Code 1930, sec. 656).
3. COSTS.
Delay for almost a year after granting of rule for security for costs did not justify court in striking affidavit of poverty and dismissing cause, in absence of showing that defendant was prejudiced by delay (Code 1930, secs. 656, 663).
APPEAL from circuit court of George county. HON.W.A. WHITE, Judge.
Moss Moss, of Lucedale, and Mize, Thompson Mize, of Gulfport, for appellant.
We think it is apparent that the court could not make an order providing that plaintiff's cause of action should stand dismissed in vacation if she did not give bond for cost. Section 656 gives the authority to the court to require a plaintiff to give bond within sixty days after an order of the court is made for that purpose. This is as far as the statute goes and this is the statute that was in effect when the order was made in this case. The court could simply require the plaintiff to give bond for cost within sixty days. That was done in the instant case, the other part saying that the cause should stand dismissed is a pure nullity for the want of power to make that order. During that time the plaintiff had the right and it was her duty to make an effort to give a bond for cost but if she could not then as long as the court had jurisdiction over it she could file a pauper's affidavit and thus meet the rule.
Section 663, Code of 1930.
The only way that a court can extend its time to make an effective order is either by calling a special term as provided by section 731 or by section 732, which provided if the trial of a cause is in progress the court may continue until that is finished without a special order, but in the instant case no such contention existed.
The statute is liberally construed in favor of the plaintiff. After the order is made, then the mere expiration of the time allowed does not of itself operate to dismiss the case.
Griffith's Chancery Practice, sections 277 and 279; Grimball v. Railroad, 11 Miss. 38; Railroad v. Ballard, 13 Miss. 608; Ballard v. Dorsey, 15 Miss. 9; 7 R.C.L. sections 8 and 10.
The conclusion is, therefore, inescapable that the matter was a pending cause at the November term, 1936, when the pauper's affidavit was filed.
Did the court abuse its discretion in striking the pauper's affidavit and dismissing the cause of action? Unless the defendant is prejudiced by the delay, it is the duty of the court to permit the affidavit to be filed.
Kile v. Stenson, 21 Miss. 301; Kittle v. Railroad, 92 Miss. 381.
As said by Judge Griffith in section 277 of the Chancery Practice with reference to allowing the security to be given after the elapse of the time: "and generally should do so if agreeable to justice and no substantial actual prejudice will be done to the opposite party thereby, the court will look to all the facts touching the delinquency, and to the probable merits of the suit and will exercise a sound and at the same time a sympathetic discretion."
Viewing the present case in that light, we submit that the court abused its discretion in sustaining this motion.
The statute is liberally construed in favor of poor persons in order that their cause may be presented to the court.
Meeks v. Meeks, 126 So. 189; Carroll v. L. N., 122 So. 469; Wright v. Stanford, 100 Miss. 856; Kittle v. Y. M.V.R.R., 92 Miss. 381; Kyle v. Stenson, 13 S. M. 301.
When the plaintiff filed her pauper's affidavit before the cause was dismissed, she met this order of the court and then the court may dismiss the cause if it is satisfied that the allegation of poverty is untrue. This is provided by section 664, but such dismissal must be taken on testimony which was not done in the instant case. This is necessary to be done.
Feazell v. Staltzfus, 98 Miss. 886.
Heidelberg Roberts, of Hattiesburg, for appellee.
The court in the order entered gave the plaintiff sixty days within which to comply with the said order for costs. During that time it was the duty of the plaintiff to comply with the said order for costs. If she was unable to give a bond for costs within the sixty day period she could file a pauper's affidavit or otherwise comply with the rule for costs that was entered against her as provided by section 663 of the Mississippi Code of 1930. She failed to do either.
We note observations made by the opposition dealing with sections 731 and 732 of the Mississippi Code of 1930. We cannot see how that these sections have any application to the question presented.
The court will look to all the facts touching the failure of the plaintiff or complainant to comply with the order for costs and to the probable merits of the suit, and will exercise a sound and at the same time a sympathetic discretion. This court will be advised that the suit which was dismissed in George County, Mississippi, was not the first suit filed by Lillian Bond. She had another suit in Forrest County, Mississippi, and elected to dismiss that suit some several months after the George County suit had been filed. An examination of the declaration which is a part of the record herein will disclose that Lillian Bond was really not charged in the newspaper article with anything other than the truth. The news article explains what each of four individuals who were arrested were charged with, and Lillian Bond was shown to be charged with possession of whiskey. This charge was based upon a grand jury action. The court in considering the motion to dismiss had a right to and probably did take into consideration the reputation of the plaintiff and the probable lack of merit to the suit pending.
It is our contention, as it was before the trial court, that the judgment as entered on the 11th day of November, 1935, was a final judgment subject to the right of the plaintiff to comply with the order for costs within a period of sixty days. The plaintiff did not comply with the said order for costs in said time and has not to this date complied with the said order as the law requires, and under the state of the record as it existed at the time of the presentation of the two motions to the court, there was nothing for the court to do but to sustain the said two motions and cause the suit to be finally dismissed and the costs to be taxed against the plaintiff, which was done as disclosed by the final order.
Weathersby v. Pearl River Lbr. Co., 88 Miss. 535, 41 So. 65.
The time used by the plaintiff alone was sufficient to justify the trial court in concluding that the defendant had been injuriously affected by the delay. But, be that as it may, we must remember that in this case the order for costs was entered and the sixty days had expired and more than eleven months had passed before the plaintiff attempted to comply with the said cost order, and when the attempt was made it was in violation of section 656 of the Mississippi Code of 1930, in that the plaintiff failed to obtain leave of court for an extension of time within which to file the cost bond or pauper's affidavit, and when the pauper's affidavit was delivered to the clerk, the clerk had no right to accept and file the same.
It was not within the power of the clerk of the court to accept the bond for costs after the time limit fixed by order of the court.
Kittle v. Railroad Co., 92 Miss. 381, 45 So. 867.
The cases which have any favorable application to the contention of the opposition deal with cases where the plaintiff complied with the order for costs in a period of a very few days after the expiration of the sixty day period. No such case exists before the court here. We have here a case where it was not five days nor seven days, but 338 days after the time granted by the court within which to comply with order for costs when she improperly filed a pauper's affidavit without having gained leave of the court and by merely lodging the said affidavit with the clerk at a time when the court was not in session and when the court did convene there was no effort on the part of the plaintiff or her attorneys to obtain leave of the court to file a pauper's affidavit or bond at that time, and the court, therefore, had nothing before him to rule upon save the order for costs, the affidavit improperly in the record, and the motion to strike the affidavit from the files and dismiss.
At the September, 1935, term of the court below, at the instance of the appellee, a rule for security of costs was made by the following order then entered: "This cause coming on this day to be heard on motion of the defendant to require the plaintiff to give security for court costs, and upon consideration thereof, it is thereupon ordered that said motion be and the same is hereby sustained, and the amount of the bond is hereby fixed at $100.00, and the plaintiff be and she is hereby allowed 60 days within which to file said bond, or otherwise respond to this order; and in the event the said plaintiff fails to comply with this order for costs within 60 days from the date hereof, then this cause will be and the same shall then and at that time stand dismissed without further order of this court."
This rule was not complied with within the sixty days. No motion was made or order entered thereon until the November, 1936, term of the court, at which term an affidavit of poverty, in accordance with section 663, Code 1930, was filed by the plaintiff in the court below. On motion of the appellee this affidavit was stricken from the files and the cause was dismissed. The truth of the affidavit of poverty was not challenged.
Section 656, Code 1930, under which the rule for security of costs was made, provides that a plaintiff may be required "to give security for all costs accrued or to accrue in the suit, within sixty days after an order of the court made for that purpose. . . . If the security be not given, the suit shall be dismissed and execution issued for the costs that have accrued; but the court may, on cause shown, extend the time for giving such security."
This rule does not contemplate that an action or suit shall stand dismissed at the expiration of the time fixed for the giving of security for costs, for the rule therefor may be complied with after the expiration of the time fixed by the court, provided it does not appear that the defendant in the action has been prejudiced by the delay. Kyle v. Stinson, 13 Smedes M. 301; Kittle v. Yazoo M.V.R.R. Co., 92 Miss. 381, 45 So. 867; and Wright v. Stanford, 100 Miss. 856, 57 So. 289. The provision in the rule for costs that, "in the event the said plaintiff fails to comply with this order for costs within 60 days from the date hereof, then this cause will be, and the same shall then and at that time, stand dismissed, without further order of this court," is ineffective.
A rule for security of costs may be complied with by filing an affidavit of poverty, section 663, Code 1930, and no claim of prejudice to the appellee by the delay in complying with the rule was made in the court below, and no such prejudice appears. It is true that the delay was for almost a year, but the appellee could have speeded the final determination of the matter by a motion therefor, and in Mississippi A.R.R. Co. v. Ballard, 5 Smedes M. 606, the rule for security of costs was made at the September, 1840, term, and an offer to comply therewith was not made until the December, 1841, term, nevertheless the court held that the compliance with the rule should have been permitted.
Reversed and remanded.