Opinion
1906-10-1
GOODENOUGH v. BURTON et al.
Dwight Goss (Robert B. Dawson, of counsel), for appellant. Colgrove & Potter, for appellees.
Appeal from Circuit Court, Barry County, in Chancery; Clement Smith, Judge.
Action by Triphena Goodenough against Edward A. Burton, as administrator of the estate of Charles S. Burton, deceased, and others. From an order dismissing the bill, complainant appeals. Affirmed.
Argued before CARPENTER, C. J., and McALVAY, GRANT, BLAIR, MONTGOMERY, OSTRANDER, HOOKER, and MOORE, JJ. Dwight Goss (Robert B. Dawson, of counsel), for appellant. Colgrove & Potter, for appellees.
HOOKER, J.
In this cause the defendant moved for, and was granted, an order for security for costs, upon a showing that an execution could not be collected from the complainant's property. The motion was made 20 days after the answer was filed, presumably as soon as a session of court would permit of its being heard. The defendant opposed it on three grounds: (1) That the statute does not permit such an order in a chancery case; (2) that it is inequitable under the showing made, complainant admitting her poverty and filing an affidavit of merits; (3) that the motion was unduly delayed.
1. If the statute (section 9992) does not apply to chancery causes, a court of equity has the power to order security for costs, which is incident to courts of general jurisdiction both at law and in equity. See Newman v. Landrine, 14 N. J. Eq. 292, 82 Am. Dec. 294; Dyer v. Dunivan, 3 How. Prac (N. Y.) 135;People v. Oneida C. P., 18 Wend. (N. Y.) 652;Swift v. Collins, 1 Denio (N. Y.) 659;Broadwell v. Weeks, 1 Johns. Ch. 325; 19 Cy. Pl. & Pr. 340. Old chancery rule 6, and the present rule 38 can have been based on nothing but such inherent power. See Skinner v. Lucas, 68 Mich. 424, 36 N. W. 203, which recognizes the validity of rule 6.
2. This court will not review the discretion of the circuit judge, who makes or denies an order for security for costs.
3. While it a general rule that an application for security should be made as early as practicable, it is commendable to accompany it by an answer to the merits, and where it is filed with or soon after such answer is filed it is within the discretion of the circuit judge to determine whether it should be denied on the ground of laches. Shaw v. Wallace, 2 Dall. (Pa.) 178, 1 L. Ed. 339;Gedney v. Purdy, 47 N. Y. 676.
4. It was proper to dismiss the bill for a failure to comply with the order, a reasonable opportunity having been given. People v. Fuller, 18 Wend. (N. Y.) 651;Gifford v. Roberts, 125 Mich. 410,84 N. W. 465.
The decree is affirmed, with costs of both courts.